HomeMy WebLinkAboutTC Agd Pkt 1995-06-07
5. GANN ACT APPROPRIATION LIMIT FY95-96 (Adopt Resolution)
6. 1972 OPEN SPACE GENERAL OBLIGATION BONDS, TAX RATE FY95-
96 (Adopt Resolution)
4. TOWN'S MONTHLY INVESTMENT SUMMARY (As of April 30, 1995)
3. APPROVAL OF MINUTES #1051, May 17, 1995; #1052, May 23, 1995;
#1053, May 23, 1995 (Joint Meeting)
71lc purpose of the Consent Calendar is to group items together which generally do not require discussion
and which will probably be approved by aile motion unless separate action is required on a parlicu/ar item.
Any member of the Town COllncil, Town Staff, or the Public may request removal of an item for
discussion.
D. CONSENT CALENDAR
2. LAFCO HEARING - OLD LANDING ROAD REORGANIZATION
(Councilmember Thayer)
1. MARIN COUNTY HAZARDOUS & SOLID WASTE lPA MEETING
(Councilmember Nygren)
C. COUNCIL. COMMISSION OR COMMIITEE REPORTS
Please confine your comments during this portion of the agenda to matters not already on this agenda,
other than items on the Consent Calendar. T7le public will be given an opportunity to speak on each
agenda item at the time it is called. Presentations OfC limited to three (3) minutes. Matters requin'ng action
will be ref CITed to the appropn"ate CommissioJJ, Board, Committee or Staff for consideration and/or placed
on a future Council meeting agenda.
B. PUBLIC QUESTIONS AND COMMENTS
A. ROLL CALL
===============================================
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact
Town Hall (415) 435-7373. Notification 48 hours prior to the meeting will enable the Town to make reasonable arrangements to
ensure accessibility to this meeting [28 CFR 35,102-35.104 ADA Titie IIJ
(1) AJways Address the Chair; (2) State Name and Address; (3) State Views Succinctly; (4) Umit Presentations to 3 minutes; (5)
Speak Directly into Microphone.
PLEASE NOTE: In order to give all interested persons an opportunity to be heard, and to ensure the presentation of all
points of view, members of the audience should;
==============================================
MEETING DATE: JUNE 7, 1995
MEETING TIME: 7:30 P.M.
CLOSED SESSION: NONE
1
TOWN 0F TIBURON
1101 mWRON BLVD.
REGULAR MEETING
;f;!4sn^.
TIBURON TOWN COUNCIL
AGENDA
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TO: June 12, 1995, 7:30 p.m., Council Chambers for Budget Hearing and Election
Certification
L. ADJOURNMENT
17. TIBURON SANITARY DISTRICT NO.5 - PARADISE DRIVE SEWER
IMPROVEMENT DISTRICT
K. STAFF AND TOWN MANAGER REPORTS
16. LEITER TO TOWN COUNCIL FROM LAFCO DATED 5-17-95 (Sphere
of Influence Update)
15. APPLICATION FOR EIGHTH ANNUAL CHILI FESTIVAL (September 9,
1995)
J. COMMUNICATIONS
14. DOWNTOWN MAIN STREET ADA REQUIREMENTS (Discussion of
Options being Considered by Private Property Owners)
13. TREE ORDINANCE (Review & Discussion of Town's Tree Ordinance
Provisions)
I. NEW BUSINESS
12. DOWNTOWN FERRY DOCK REALIGNMENT (Report on Meeting with
Engineer and Red & White Fleet/Accept Easement - Resolution)
11. GREEN CAN PROGRAM (Approve Proposed Trial Program by Mill Valley
Refuse Service)
H. UNFINISHED BUSINESS
10. LEAF BLOWER ORDINANCE (Introduction and First Reading)
9. APPEAL OF PLANNING COMMISSION DECISION RE: HAM RADIO
ANTENNA at 223 Diviso Street (APPELLANTS: Misuraca/Brieant)
8. APPEAL OF DESIGN REVIEW BOARD DECISION RE: 690 Hilary Drive
Proposed Addition (APPLICANTS: Krabbenschmidt/O'Dell- APPELLANTS:
McDonnell)
G. PUBLIC HEARING
7. POINT TIBURON COMMUNITY FACILITIES DISTRICT, TAX LEVY.
FY95-96 (Adopt Resolution)
1994's ABA939 compliance disposal diversion repclct!_; ",'! " lCC':,S' nC"d.
Tiburon's rate has improv(~d frr':')nl 23.9'?6 to 29.300. --;-'he d\',-:'~:',F]I' l'dt,:;
for the county was 34.100_ The unincorpc)rated arf-:::.as die ot a -1.-1:"0
rate and Belvedere is at 19.t~'\. Thus, Tiburon ha:.; -rp,-H_'}j,;:(i it l'J05
requirement. 1';e nOh need to achieve 500u by 200']. \~:'h' rlll_';'_~~-"~lre::-:;
such as diversion of ::'ard hd~-)t:t~:3 a.ppears to be t:h.~' :::L~'J _;('~-;t 1\ t.,
reach this 50~ requirement. See attached.
Only a portion of our 1995-96 budget I'as adopted. Ihe3cc>d:: ,hat
would expand into new programs I,as temporarily placed ",n [,,,,d.
RAc1h'ooc1 Land Fill informed the ...TP.\ board that ,-1u,~. r,:, (;Ildn~;t':-;: I n }Ij~'
refuse program they hould need to subs tan t i d 11 \ l:"_TbL:" tile i L
operating expenses hhich ~ould reflect on our 1(:';:31 0Jrt'~00 rates
and tipping fees. This is to be reviehed j_)~ t~',> I-!i;i~'j ~tJ.(lilS
Committ(~e and brought back to the ,JP,\ at its next me"timj.
Our town has asked to hri te let ters in "llpport and oppClsi t 1, 'n uf
solid waste legislation. See attached.
\,e moved forward on the draft "siting element" reqllir,'c1 fhe
state.
to support the Bay ."rea Supermarket "Bu\'
A one month education progt-am v.-i 1] Li~
and Lucky to encourage shoppers to be more
"buy recycled" or "minimum ~dckagi!lg"
The JPA gave approval
Recycling" program.
implemented at Safehay
consciences of their
purchases.
evaluate its Ohn recycling pr()'.jram ,mr]
that sets an example for other bllsinesses.
to the town giving guidelines.
The tOlm is asked to
implement it in a manner
A packet will be mailed
RE: REPORT MARI~ COC\TY HAZARDOUS & SOI.ID WASTE JPA MEETT\G
OF MAY 22, 1995
MAY 23, 1995
FROM: KAREN NYGREK
TIBURON TOWN COUNCILMEMBER
Ikk j}~. /
MARIN COUNTY AB939 TASK FORCE
May 22, 1995 -
AGENDA ITEM 7
AGENDA ITEM 7:
Legislative Report
STAFF REPORT & .
RECOMMENDATIONS: At the request of Task Force member Gloria Duncan and
Carol D' Alessio of the Marin Conservation League, staff
analyzed four pending state bills which could impact our solid waste planning and diversion
efforts. The following presents a brief analysis of the legislation, the bills' status as of May
11, and staft's recommendation for Task Force action. Since several of these bills are
moving from committees or from Senate to Assembly. a current update will be available at
the Task Force meeting. .
1. AS 696 (Harvev) AS 939 Diversion Goals
AS 6996 would permit the CIWMS to exempt low population density counties from
AS 939 goals of 25% waste reduction by 1995 and 50% by the year 2000. This is a two-
year bill and will not be taken up during the current legislative session.
Staff Recommendation: Take no immediate action, since this is now a two year bill, but
follow during next legislative session.
2. AS 1773 IOlbero) Severaoe Containers
AS 1773 would eliminate the processing fee paid by the beverage manufacturers
and delete the Glass Processing Fee Account which funds are used for a market
development program. This bill relieves the beverage manufacturer from helping to pay a
portion of the recycling costs for the containers they manufacture. Essentially, this bill
eliminates the "bottle bill" and redemptions.
Opposition:
Environmental groups
Convenience Zone operators
Recyclers
Waste haulers
Support:
Glass Manufacturers
Status:
AS 1773 is awaiting a rule waiver so that it can be heard in committee.
Negotiations are also ongoing to arrive at a compromise between this bill and
AS 995 (see below).
Staff Recommendation: Send letter of opposition to Assemblymember Olberg and to
committee chair and to Assemblymember Mazzoni's office, check with CSAC and League of
Cities and continue to follow closely.
Page 1 of 2
Page 2 of 2
c:\winword\jpa\tfleg95.doc
Staff Recommendation: Send letter of opposition to appropriate committee in the Assembly
and Assemblymember Mazzoni's office. Continue to follow closely.
The bill passed the Senate Business & Professions Committee by a 6.3
vote. It is now in its third reading in the Senate. May 9, '995 was the
filing date for action. It is expected to pass the Senate any day and will be
sent to the Assembly and assigned to the appropriate committee.
Status:
American Forest and Paper Association
California League of Food Processors
Simpson Paper Company
Mead Corporation
Weyerhaeuser Company
Jefferson Smurfit Corporation & Container Company
Kraft Foods, Inc.
California Grocers Association
California Chamber of Commerce
American Electronics Association
Grocery Manufacturers of America
Support:
Californians Against Waste (CAW)
Opposition:
California law requires that a product or package must have a minimum '0% post-
consumer recycled content. SB 426 would remove this requirement and allow products that
contain 0% post-consumer recycled content to be labeled as "recycled."
SB 426 repeals existing state standards of minimum product and packaging
requirements for the use of the terms "recycled", "biodegradable" and .ozone friendly" in
advertising. This bill makes the use of the above terms subject to the Guides for Use of
Environmental Marketing Claims published by the Federal Trade Commission. The federal
guidelines weaken existing requirements inasmuch as the federal standards are guidelines
only and not enforceable. State standards provide a more clear definition of these terms
and a violation of these standards is a misdemeanor, punishable by law.
3. SB 426 ILesne) Environmental Advertisina
StBff Recommendation: Send letter of support to Assemblymember Sher's office, contact
Assemblymember Mazzoni's office and follow closely over the next month.
AB 995 is the opposing legislation to AB' 773. It is currently being held up
from assignment to the Natural Resources Committee to see if a compromise
can be worked out with AB '773.
Status:
AB 995 would extend to January' 998, those provisions in the California Beverage
Container Recycling and Litter Reduction Act pertaining to processing fees paid by beverage
manufacturers and handling fees paid to supermarket sites for the redemption of empty
beverage containers. The provisions currently in the law expire January', '996.
3. AB 995 (SherI Beveraae Containers
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AS 939 COMPLIANCE
1993.1994 COMPARISON
JURISDICTION Diversion Rate % Waste Generated Tonnage Waste Dfvltfted Tonnage Waste Ois sed Tannage
1993 1994 Change 1993 19904 Change 1993 1_ Change 1993 1994 Change
1 8elvedl!l'@ 27.1% 19.6% -7.5% 2.881 3.21. 335 763 1007 2" 2.117 2209 0:
Corte Made", 21.3'Il1o 25.1% :>."4 12134 "645 .... 3022 2607 .2" 9112 .838 -27,'
Fairfax ,.."" 30.2% 1'.2'lli 9.3<3 7,723 -1620 2,7llO 2180 ./lOO .... 5.542 -,02:
Lark~pur 27,'" A2,'" 15,,", 14974 12927 -2047 3,185 3$7' 3B6 """ '356 -24:>
5 MIf~Ylllle 34,9"4 4'.6% 6.7% 20,944 19243 -1701 6,113 0722 -39' 14,830 13,522 -,'"
Novato 26.13% 25.6% -1.2% .8,374 "'''7 2m 7,093 a,429 '336 41280 "'<.. 1f8>
Ross 38.7% 46.6%- 79% . 4674 4,351 -323 1,657 1,837 ". 3,018 251. _S<>
~selmo 24.4'lfl 24.4% . O.Of{, 15,341 15.331 -'0 4,334 4,146 ".. If 007 'J...'85 I7f
San Rafael 27.5% 31.6% 4,1% a'99< 86 437 ..'" 22 2re "'738 7533 S9789 56,698 -3091
Sausalito 23.1'1. 29.8'" 6.7% 13,150 11,856 -1m 3,236 3J192 .'4. 9915 aT"" -1151
Tiburon 239<J. "'.... 5."% 12,0442 11680 -762 3.391 3,= -52 905' 8,341 .71C
Uninc~~orated 43,,," 44.5~ 1..3'" 54,2t16 54,048 .218 13163 ..". 117:.> 4t,103 Ml,710 ,139:1
Tot.:J1 County 30.7% 34.1" 3.4% m.519 189,.354 -1165 70943 ",206 92S3 219576 209147 -104Z:
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AB 539 WASTE DISPOSAL AND OIVERSION MONITORING FOR 1995 GOAL
JURISOlcnON Tlburon REPORTING PERIOD Jln.19N ..Oec.1M..
FRANCHJSE. HAULER Mil VaUey Refuse Servic.e, Inc. REPORT DATE 5120195
OTHER HAULER(S) G....ge LANOFIL.US) USED R_
Marin Sanitary StNice Weft Contra Com
R!c:hmcnd
RECOVERY FACIUTY MRRRC
1atC1r 2nd Qtr 3rd Qu 4tt\Qtr TOTAL
MRA:RC FACIUTY RECOVERY RATE 65.8% 62.3% 52.1% 51.0%
A. 1994 TOTAL TONS OIVERTED "S US 141 "9 3,339
RECYCLED 43' 449 444 440 1,7ee
WOOONARO WASTE COMFOSTED(1) '37 .. 19' '21 m
INERTS DIVERTEO 217 28. 302 228 1,036
B, 1994 TOTAL TONS DISPOSED 2,040 2,127 2,168 ~,O(l9 8,341
RE~ULAR MSW OfSPOSEQ 1.349 1.415 ',370 ',407 5,541
DEBRIS BOX & RE.SIOUALS DISPOS~D 216 236 351 259 1,112
WOOOIVARD WAS:'E INCINERATED 247 '54 111 80 592
SEL.F~HAUl OISPOSEE:(2l 228 272 334 263 1.097
C.1994 TOTAL. WASTe GENERATED 2,825 2,951 3.1011 2.798 11,S80
D. COMPLIANCE wrTH AS 939 199$ 25% DJVERSION MANDATE (Based on 1994 Oatal
Total Waste Gen~ted in 1990 Base Year (Wl1h lICljuS1ment!}(3) 11,803
MB;mum allcwlIble Cisp08a1 in 1 '95 1759/. ot tQUlI adjusted 1 SSO oase year) a.aS2
1994 ActualOiSJ)osal 8.;141
Ad=l.tionill Diversion Needed to Meet 259;' Goal (511)
Percent r:Ii\lerted as Percenlage 011900 AdjUSled Bue Year 29.30;,
E. TOTAL OF ALL. DIVERSION ACnVITJ~S INCLUDING INCINERATION
tWooC!yatd W~te inc:f1erated dee. ncl counllowardt meellng Ihe t 995 ci'Je/Slon mandate)
Cu:bside & Buy-back. Rec'IctnQ 378 411 40' 408 1,537
CUfb:iide GrHll Waste Composling & InCineration 323 154 '90 '0 747
Public Self.Haul Processed af MRRRC 182 242 240 169 B53
Ffancl1ise &. CommerCIal Haul&r(s) Processed at MRRRC 150 172 221 192 73~
TOTAL DNERS10N 1,O.n 979 1,052 9" 3,g32
NOTES
1 Sued on 100.0919 of lotal wood tines and ~rdw~e COmllO$ted as reported MRRRC and haul.,..
:2 Seit-na:Jlallccadcn fotml:la basec:l on a two month venicle C(llJnl iJIIerege 811 repor:ed by MRRRC IInd
Fledwood Landfill: inc:udes seJ.haul residl.ial Wi$te processed from MRRRC.
3 Adj"'stment factors for the 1990 b~se year ;Ilcl\,ldlt changes in pO(:l\,llallon, laxat:le tra:1eec-Jans. emp~Oym8nl. and
llmrtaDons 01 tnlillts rKyded t:J an amount no ~reale( In.n t'Ht amo\ln1 of Inj!,ttS dlsp:losed.
P,2/6
MAY 23 '95 13:07 MARIN WASTE MANAGE!_VIRORS
"
MAY 23 '95 13:08 MARIN WASTE MANAGE!_VIRORS
P.3/6
MATERIAL TYPES DiveRTED FROM LANDFILL DISPOSAL FROM RECYCLING AND COMPOSTING (4)
WASTE TYPE DATE
1stOuarter 2nd Quarter 3td Quart8f 4th Quarter TOTALS
PAPER
CORRUGATED PAPER 53.05 81.74 66.76 65.60 247.95
COMPUTER PAPER
MlXEO PAPER
NEWSPAPER 233.44 237,54 231.65 231.04 933.67
HIGH GRACE LEDGER
SUBTOTAL PAPER 287.29 299.28 298.41 296.64 1,181.62
PLASTICS
HDPE PLASTIC
PET PLASTIC
OTHERPLASTlCS~OT~P~~ 1.03 1.15 1.27 1.20 4.65
SUBTOT~ PLASTIC 1.03 1.15 1.27 1.20 4.65
GLASS
GLASS 104.19 112.51 107.80 110.08 434.59
SUBTOTAL GLASS 104,19 112.51 107.50 110.08 434,59
METALS
ALUMINUM 5.79 5.76 5.69 5.42 22.66
FERROUS AND TIN 25.05 21.76 22.95 18,51 88,27.
NON.FERROUS
WHITE GOODS
OTHER METALS ~OTAL METALS) 8.10 8.72 8.~5 8.55 33.72
SUBTOTAL METALS 3U5 36.24 36.99 32.48 144.55
YARD WASTE
YARD WASTE 75.76 0.00 79.48 0.00 155.24
SUBTOTAL YARD WASTe 75,76 0.00 79.48 0.00 155,24
ORGANICS
FOOD WASTE
TlRESiRUBBER
WOOD WASTE 61,52 86,27 114.28 120,65 382,71
TEXTILES
SUBiOTAL ORGANICS 61.52 86.27 114.28 120.66 382.71
SPECIAL WASTE
INERTS 216,60 289,12 302.42 227,56 1,035,80
BULKY WASTE MO 0,00 0.00 0.00
SLUOOE
SUSTor AL SPECIAL WASTE 216.60 289,12 302.42 227.56 1.035,80
OTHER WASTES 0,00 0,00 0,00 O,QO 0,00
OTHER WASTE
TOTAL I 785 825 941 789 3,339
NOTES:
4 Yard/'Wacd W8$te tt'lat IS incine/aled oS not conSidered .:Nerted for pUrpCQ8' cr lTi~'lng the 1;S5 25"'" di'J8rsicn mandale anl1
is nOllnclud.id as par1 gf lne matenals cl\ler:ed from lancllll dis':los2.1.
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2'J.3~~1
[1'J'J4WASI'~ IJ1VH{SION RATE
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-." U19.li56
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lw(WMTE~t.RATE
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t ADJUSTMENTR.",nOS 09!N/199O)
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TOTAL BASE YEARCENER'\TION (."<Ii...Ied)
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, COMrllANcERESULTS
2 1990 YEAR WASTE GENERATION AOJUSTBDTO JNCLUDE INERTS
ItR>IDFNI'lAt CII TOTAL
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fL.\SlO"'EARW~GENERATION 5,0.58 6,110 11.868
RIIl$i<l9t\1ial AdjUllltllUlnt filC10f IRA-FI '" 09'J4 Pooublion!l99Q Po_lIlian) + CI AF
2
CommerciaUlflol,lSuial Adjuslcnenl: Facto.- IClAA... fllJ94 RmblollMl!ntll990 ErrIfIlaymenll'" n9!H T.".bl_ Tranouctionsl1990Tu.bll! Tr~,",M"ll""')
2
1994 Allowable Disposal = 0.75 X (Base Year RWG)(1994 RAF) + (Base Year CIWG)(1994 CIAF)]
IS
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1 CAlifORNIA INTEGRA TED WASTE M4NAGEMENT SOARO ~SPOS"L BASED COMPLIANCE FORMULA
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1993 1994 CHANGE
TOTAL TONS DIVERTED 3391 3339 -52
Recvcled 1796 1766 -3D
WoodlYard Waste Comeosled 165 536 353
Inerts Diverted 1410 1036 -374
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TOTAL TONS DISPOSED 9051 6341 -710
Regular MSW Disposed 5509 5541 32
Debis Box & Residuals DisDosed 1177 1112 -65
WoodlYard Wasle Incinerated 1295 592 -703
Self-Haul Disposed 1070 1097 27
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TOTAL WASTE GENERATED
-7621
124421 116801
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5/17/95
TOWN COUNCIL MINUTES #1051
4. Wayne Snow, Chairman of the Parks and Open Space Commission,
recommended approval of the Barbara Meislin Swing Bench, and reported that the
Commission had discussed the placement of Blackie's statue and proposed Marsh
Restoration Plan. Councilmember Nygren had some questions about the alternatives
E. COUNCIL. COMMISSION OR COMMITIEE ORAL REPORTS
None.
D. PUBLIC OUESTIONS AND COMMENTS
2. Council approved RUSD designee Richard Rosen as the at-large delegate to the
New Library Board of Trustees.
C. APPOINTMENTS TO COMMISSIONS. BOARDS. COMMITIEES
1.a) Public Works Superintendent lacopi introduced new Maintenance Worker I
Jennifer Kielar, saying she had scored the highest on both written and oral tests of all
21 applicants for the position. b) Planning Director Anderson introduced new building
inspector Bill Talley, formerly with the Town of Corte Madera.
B. INTRODUCTION OF NEW TOWN EMPLOYEES
Town Manager Kleinert, Town Attorney Ewing,
Police Chief Herley, Finance Director Stranzl,
Planning Director Anderson, Town Engineer
Mohammadi, Public Works Superintendent
Iacopi, Town Clerk Crane
EX OFFICIO:
ABSENT: COUNCILMEMBERS: None
PRESENT: COUNCILMEMBERS: Ginalski, Nygren, Thayer, Thompson, Wolf
A. ROLL~ALL
Mayor Thompson called the regular meeting of the Town Council of the Town of
Tiburon to order at 7:35 p.m., Wednesday, May 17, 1995 in Council Chambers, 1101
Tiburon Blvd., Tiburon, California.
CALL TO ORDER
DRAFT
IleAL #0. 3
TOWN COUNCIL
MINUTES
listed in the Williams & Associates letter to the Audubon Society (re the Marsh).
Chairman Snow said the report had not yet had a public hearing, so he was unable to
comment on the direction the Commission might take. Councilmember Thayer asked
for clarification on the placement of Blackie's statue.
On a separate issue, Council member Thayer reported to the Council that the Board
of Supervisors had approved the largest ever grant of Community Development money
($82,435) to the Hilarita. He noted that it was an indication of the County's support for
that project in the face of potential loss of federal funds.
F. CONSENT CALENDAR
5. RESOLUTION DENYING APPEAL/GRANTING VARIANCE (Bronte)
6. VISTA TIBURON SUBDIVISION (Final Map/Resolution)
7. MINUTES #1050, May 3, 1995 (Page 6, Item 9 Amended per
Councilmember Wolf)
Councilmember Thayer moved for approval of Items 5, 6 & 7 (above), seconded
by Councilmember Wolf. All ayes were recorded, except for Councilmember Nygren,
who abstained from voting on Item 6 due to proximity conflict.
Town Manager Kleinert asked for an item to be added the Consent Calendar
regarding the Belveron Gardens pump station and sewer rehabilitation project. Council
asked for time to review the project, previously agreed to in concept, at a future meeting.
Item was set for hearing on May 23, at 7:15 p.m. Council requested that residents
adjacent to project be notified of the meeting.
Item 8 (Major Crimes Task Force) was moved off the Consent Calendar.
3. a) Council returned to Committee Reports. Janet Braff, Chair of the Heritage
and Arts Commission, gave a report on the newly completed Walking Tour Brochure.
Michael Heckmann, architect and contributor of artwork to the brochure, also gave a
brief report. Copies of the brochure were made available to those present, and will be
available at various locations in Town. Red & White Fleet bought 25,000 of the 50,000
copies printed. Councilmember Nygren and Mayor Thompson thanked the Commission
for their efforts, and Town Manager Kleinert thanked the Commission on behalf of the
Chamber and the business community.
G. PUBLIC HEARING
9. GREEN CAN PROGRAM. Town Manager Kleinert gave the staff report prior
to the second public hearing on the proposed yard waste removal ("Green can")
program. He reiterated some of the concerns expressed by the public at the April 19
hearing and gave staffs responses. He stated that other Marin County communities had
TOWN COUNCIL MINUTES #1051
5/17/95
2
3
5/17/95
TOWN COUNCIL MINUTES #1051
Rick Powell responded to the comments and stated the company's concern about
potential workers' compensation claims if bags had to be lifted manually by the
sanitation workers.
Joy Easom, 1828 Lagoon View Drive, expressed concern about getting the can up
their steep driveway, and asked where to put it since they have no sidewalk. She, too,
would prefer bags.
Fran Mayberry, 1494 Vistazo West, expressed concerns on behalf of her neighbors
as to shortage of storage space and unsightliness of the Green Can. She stated they
would be more cooperative if they could use bags instead of cans.
Ellen Hall, 8 Southridge West, was concerned about being able to fill the Green
Cans on a biweekly basis.
Frank Allsinger, 525 Comstock Drive, stated that he liked the quarterly yard waste
pick-ups and wanted to keep them. He questioned why MVRS (or any sanitation
company) needed to raise rates and asked why they couldn't just slash the garbage bags
to see if the trash was yard waste or not.
Mayor Thompson opened the public hearing.
There would be no upfront cost to residents in the pilot program, but Powell
estimated the cost of doing a pilot program at $15,000. At the end of the pilot program,
MVRS will send out a questionnaire asking for comments about the program. If the
program is canceled, the cost would have to be taken into account somehow.
Mr. Powell also offered two new features to the proposed Green Can service: 1)
a 20 gallon mini-can (which could be used in conjunction with the Green Can for a
lower the garbage rate of $11.86 per month); 2) MVRS will pick up one tied bundle of
yard waste, maximum 5' long and 1-1/2' in diameter, biweekly. (The latter was in
response to concerns expressed at the April 19 hearing about having to further cut and
break down large branches, etc.) He also stated that MVRS currently has "hardship"
service for people who cannot bring their cans to the curb, and the company would offer
the same service as part of the Green Can program upon demonstrable need.
.
Rick Powell, General Manager of Mill Valley Refuse Service (MVRS) stated that
Marin Resource Recovery in San Rafael now composts all clean yard waste, as well as
wood waste. He estimated that wood waste probably represents 80% of total yard waste.
introduced similar programs and were happy with them, and that the community had an
obligation to support such a program in order to raise the Town's 1994 30% diversion
rate to the 50% mandate by the year 2000. He said that if the program was instituted
on an optional basis it would drive up the overall cost.
Mirella Abbo, 90 Raleigh Circle, wanted the Del Mar area to be included in the
pilot program. She said that even though the neighborhood currently recycles and takes
trash to the landfill, she has heard mostly negative feedback about the Green Can
program.
Eric Schmidt, Silverado Drive, said that composting was the answer to the yard
waste problem and that he didn't want to pay for a program he wouldn't use.
Hearing returned to Council. Councilmember Ginalski asked about printing bags
with the word "Green." Councilmember Wolf stated that the Green Can program was
premature and should be instituted as a last resort after a) increased recycling, especially
in the business district, b) education to discourage residents from taking clean yard waste
landfill, c) the bags versus can option was explored, and d) composting was promoted.
She thought the program should be voluntary at first and, if necessary, changed to
involuntary if the percentages didn't rise.
Rick Powell said that he had worked with Town Manager Kleinert to increase
commercial recycling in Town with some success in that area, but that the 30% current
rate would remain flat unless something like the Green Can program was instituted.
Council thanked Mr. Powell and MVRS for the Green Can proposal and their
willingness to work with the Town. Town Manager Kleinert proposed returning to
Council with specific details and list of neighborhoods for the pilot program.
H. UNFINISHED BUSINESS
11. CAYFORD PEDESTRIAN/DRAINAGE EASEMENT. Town Engineer
Mohammadi gave the staff report on the history and current status of the proposed
project. A culvert had been installed on what turned out to be a legal lot, not a street,
as shown on the County Assessor's map. The new owner of the lot, Mr. Weiss, has
asked the Town to relocate the pipe in exchange for a waiver of building permit fees and
an easement on the property.
Mayor Thompson opened the public hearing.
Bruce Hall, 8 Southridge West, asked whether a residence could be built on the lot.
Ann Ross, 16 Reed Ranch Road, wanted to know whether it was two lots or one,
and why the purchaser didn't know about the drainage issue. (Town Attorney Ewing
said Mr. Weiss had approached the Town about removal of the pipe while the property
was in escrow.)
Other neighbors expressed concerns about the Town installing lights on the
proposed pathway, whether the pathway had to be paved or not, the current use of the
TOWN COUNCIL MINUTES #1051
5/17/95
4
5
5/17/95
TOWN COUNCIL MINUTES #1051
Council asked for clarification about ADA regulations and the reason for building
a new dock in the first place. Councilmember Nygren asked about what would happen
if the DRB rejected the plan. (Attorney Ewing said that Town staff would appeal the
decision to Council.) Councilmember Ginalski asked whether the two lots owned by the
Town where the new dock would be built were encumbered by Open Space restrictions.
Finally, Attorney Ewing said that the entire project would go before the Design
Review Board this summer, but asked for Council's direction as to the extent and
amount of money that should be spent on (further) design and engineering fees.
(Council had previously directed to keep fees at a minimum.) He stated the other
considerations as: 1) a two-year limit on project implementation tied to the
CALTRANS fees; and 2) suggested that Council decide whether or not it wanted to
proceed with the project before any more fees were incurred.
He stated that, in his opinion, there was nothing in the Point Tiburon Subdivision
Lease Agreement that precluded construction of a new dock. He felt that the language
pertaining to other construction and obstruction of view applied to the shoreline park
(across from Point Tiburon).
Attorney Ewing addressed the issues of the size of the proposed new dock, and its
location closer to the shore (near Point Tiburon Bayside development). He also
informed Council that a lease between the Town and Mr. Zelinsky was being formalized
to ensure that the $1200 monthly fee currently paid by Red & White Fleet to Mr.
Zelinsky (for the easement on his property to access the dock) would be transferable to
a successor company.
12. FERRY DOCK REAUGNMENT. Attorney Ewing gave the staff report,
reiterating that $70,000 had been awarded to the Town by CALTRANS in May, 1993
to build a new ferry dock. One of the State's conditions was that the dock be public, not
private, and therefore it became subject to ADA (Americans with Disabilities Act)
regulations. In order to comply to ADA regulations, a plan for a larger dock was
developed.
Hearing returned to Council. Council concurred that negotiations should continue
between the Town and Mr. Weiss, and directed that the matter be turned over to the
Legal Subcommittee (consisting of Councilmember Ginalski and Thayer).
Mr. Weiss gave his comments and suggested changing the angle of the path at one
end to coincide with an existing sidewalk.
Town Engineer Mohammadi said that paving the path made it easier to maintain,
and the width was specified to be able to drive trucks on it.
lot by dogs and for dumping garbage.
(Attorney Ewing said no.) Mayor Thompson asked why the dock had to be so long.
(Carolyn Horton, from Red & White, said it was necessary to achieve a 1 in 12 slopefor
ramping.)
Mayor Thompson opened the public hearing.
John Yoeman, 107 Paradise Drive, expressed concerns about diesel fumes, soot,
and the location of the proposed dock being too close to the bedrooms (of some)
Bayside condominiums. His other concerns were the east/west placement of the dock
in open water, possible larger vessels if Red & White is sold, and degradation of
property values.
Mr. Yoeman stated that the homeowners would like to see more full-scale drawings
of the proposed dock and suggested that each Bayside homeowner be notified of
meetings and receive information directly, rather than relying on their association. He
also suggested that the Town look at the dock constructed by Pacific Marine Yachts in
San Francisco that was built to comply with ADA regulations because it seemed like a
good design. (Attorney Ewing said the same engineer had designed the proposed new
dock for Tiburon.) He also proposed raising the dock to require less angle in ramping.
John Schaller, 102 Paradise Drive, stated he thought the new dock would be an
imposing structure from Shoreline Park and would obstruct the view corridor for both
the public and the homeowners. He urged the Council to reject the new dock unless
there was a compelling need to build it.
Hearing returned to Council. Councilmember Nygren stated her preference to
have the dock totally within the Town's right of way to avoid having an easement and
making payments to Main Street Properties. (Attorney Ewing pointed out that to do this
would move the dock closer to Point Tiburon.) Council member Thayer said he was not
willing to renegotiate the easement payments to Zelinsky. Councilmember Ginalski said
he thought that any negotiations would be premature at this point. Mayor Thompson
agreed.
Attorney Ewing suggested to Council that he meet with the engineers and Red &
White Fleet in order to answer some of the questions raised by Council and the public,
and to return to Council with that information. Council directed him to proceed.
8. MAJOR CRIMES TASK FORCE (Adopt Revised JPA - Resolution). Town
Manager Kleinert and Police Chief Herley recommended adoption of the resolution and
execution of the new JPA which follows the recommendations of the Federal
Government's audit and the Civil Grand Jury. Councilmember Thayer made a motion,
seconded by Councilmember Wolf. All ayes were recorded.
10. FY95-96 TOWN BUDGET. Town Manager Kleinert gave an overview of the
TOWN COUNCIL MINUTES #1051
5/17/95
6
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TOWN
COUNCIL
STAFF
REPORT
TO:
TOWN COUNCIL
MEETING DATE: 6/7/95
REPORT DATE: 6/2/95
ITEM NO.: 9'
FROM:
DAN CATRON,
ASSOCIATE PLANNER
SUBJECT: APPEAL OF PLANNING COMMISSION'S ACTIONS REGARDING
CONDITIONAL USE PERMIT APPLICATION TO ERECT ANTENNAS
FOR AMATEUR (HAM) RADIO OPERATION AT 223 DIVISO STREET.
PROJECT DATA
Address: 223 Diviso Street
AP No.: 59-131-07
File No.: CUP 19310
General Plan: MH (Med-High density resid.- up to 4.4 du/ac.)
Zoning: R-1
Property Size: 5,793 sq. ft.
Current Use: Single-Family residential
Owner: Malcolm Misuraca and victoria Brieant
Date Complete: 10-31-94
Permit Streamlining Act Deadline: 4-30-95 (90 day ext'n granted)
BACKGROUND
On October 1, 1993, Malcolm Misuraca and Victoria Brieant filed
an application for a Conditional Use Permit to erect several
antennas for amateur radio communications at 223 Diviso Street.
The original application proposed the following: 1) a "Yagi"
style beam antenna mounted on a retractable mast; 2) either a 45'
high vertical antenna (GAP Voyager DX-IV) erected on the ground,
or a wire "dipole" antenna supported in the middle by a 30' mast
to create an inverted "V" shape; and 3) a 10' high VHF/UHF
antenna attached to an existing railing. On October 26, 1993, the
application was deemed incomplete pending the receipt of
additional information.
In subsequent conversations with Staff the applicant indicated
that he might consider dropping the potentially controversial
Yagi antenna from the application. Staff supported this idea as a
way to reduce the potential visual impacts of the project. The
application was held in abeyance as incomplete for approximately
1 year. In the meantime the applicant was operating with a 31'
high ground mounted vertical antenna (GAP Challenger DX-VIII) and
the 10' high VHF/UHF antenna. These antennas presented a minimal
visual impact on the neighborhood.
In October, 1994, Staff received a complaint from Noushin Samgiss
at 239 Diviso street about interference from the applicant's
radio activities. This prompted Staff to contact the applicant
and remind him that the Conditional Use Permit application needed
to move forward. The applicant indicated that he would like to
withdraw the request for the Yagi and move forward with only the
45' high GAP Voyager DX-IV and the 10' high VHF/UHF antennas.
On November 9, 1994, the Planning Commission held a duly noticed
public hearing to consider the request for the 45' tall GAP
Voyager and the smaller VHF/UHF antennas. The Planning commission
expressed their desire to see a representation of the 45' tall
antenna on the site. The applicant advised the Commission that he
had already purchased the proposed antenna and could install it
for the Commission to review. The Commission adopted Resolution
94-24 which allowed the applicant to continue to use the existing
31' GAP Challenger antenna and the VHF/UHF antenna on an interim
basis, and allowed the installation of the 45' tall GAP Voyager
on an experimental basis. Resolution 94-24 was set to expire by
its own terms on April 15, 1995. The hearing was continued to
January 25, 1995, to allow the applicant to install the proposed
antenna for the Commission to view in the field, and to allow the
Town to have an independent technical consultant review the
applicant's proposal.
Shortly after the November 9, 1994, Planning commission meeting,
the Town retained Mr. Richard Karlquist to provide a technical
analysis of the application for the Town. Mr. Karlquist agreed
with the applicant that the existing 31' high GAP Challenger
antenna would soon be of limited effectiveness because of an
upcoming period of low sunspot activity (lasting several years).
The technical consultant confirmed that a different antenna would
be needed that could operate on longer wavelengths. Mr. Karlquist
found that both the proposed 45' tall GAP Voyager or the 30' high
dipole antenna would probably provide for reasonable
communications ability on the longer wavelengths.
Because of unusually heavy and consistent rains through the
winter, the applicant was unable to install the proposed GAP
Voyager antenna. The Planning Commission had clearly indicated
that it was unwilling to consider the application without an
accurate visual representation in the field.
On January 19, 1995, the applicant granted a 90-day extension of
the Permit Streamlining Act deadline, extending the deadline to
April 30, 1995.
The project was continued without discussion from the January 25,
February 8, and March 22, 1995 Planning Commission meetings to
allow the applicant to install the proposed 45' tall antenna.
In late March/early April, the applicant installed the 45' tall
antenna but took it down almost immediately. The applicant found
TlBURON TOWN COUNCIL
STAFF REPORT
6/7/95
2
that the visual impacts of the antenna were greater than he had
anticipated. The applicant indicated that he would like to
withdraw the 45' tall GAP Voyager antenna from the application
and proposed instead the 30' high wire "dipole" antenna described
in the original application materials (to exist in conjunction
with the 31' high GAP Challenger and the 10' high VHF/UHF
antennas). Staff again supported this modification in the
application as working to reduce the visual impacts of the
project. The applicant verified this intention in his letter of
April 12, 1995.
The applicant was absent from the Planning Commission meeting on
the evening of April 12th. Staff explained the latest changes in
the application to the Commission. The applicant's proposal was
also described in the written Staff Report for the meeting.
At the April 12th meeting, the commission expressed its concern
over the changes to the application so close to the Permit
Streamlining Act deadline. The Commission voted to allow the
temporary use permit granted by Resolution 94-24 to expire by its
own terms on April 15, 1995. The Commission continued the hearing
to April 26, 1995 to allow Staff to review the status of the
application and to give the applicant a chance to address the
Commission.
On April 24, 1995, the applicant filed this appeal of the
Planning commission's actions of April 12, 1995. The appeal is
attached as Exhibit 1. The applicant complained that the Planning
Commission's actions were outside of its jurisdiction as defined
by FCC Ruling PRB-1, were unreasonable and arbitrary, and did not
reflect any effort to accommodate the requirements of the amateur
radio operation.
On April 26, 1995, the Planning commission took up the matter for
a final time with Mr. Misuraca in attendance. Staff advised the
Commission that the application before them consisted of a
request to allow the existing antennas on the site (the 31' high
GAP Challenger and the 10' high UHF/VHF antenna) and to erect a
30' high dipole antenna on an experimental basis. Staff
recommended approval of this request. The Commission took
testimony from the applicant and a concerned neighbor, Mrs.
Samgiss. The Commission deliberated on the item and came to adopt
Resolution 95-08 which concluded that a proper application no
longer existed after the withdrawal of the GAP Voyager from the
application on April 12th.
Even though the Commission concluded that a proper application no
longer existed and that a new one must be filed, the Commission
(out of caution) then denied the project as presented without
prejudice. The Planning commission expressed its desire to
continue working with the applicant and directed that fees be
waived for any substantially similar future application filed
neURON TOWN COUNCIL
STAFF REPORT
6;7/95
3
within 30 days. The Planning commission urged the applicant to
file as soon as possible for a renewal of the temporary permit
which had been allowed to expire, and pledged to hear the item at
its next meeting if filed in time to allow proper legal notice.
ANALYSIS
Regulation of amateur radio activities by local governments
(including the erection of antennas for this purpose) is limited
by Federal Communications commission ruling PRB-1. That ruling
holds that local regulations which involve placement, screening,
or height of antennas based on health, safety, or aesthetic
considerations must be crafted to accommodate reasonable amateur
communications, and represent the minimum practicable regulation
to accomplish the local authority's legitimate purpose.
The Planning commission was aware of the directives of PRB-1, but
was frustrated at the final two hearings by the lack of an
accurate visual representation of the antenna in the field. The
Commission found that it could not adequately address the
proposal without this visual representation. The Planning
commission further found that the amendment of the application to
delete the proposed 45' high GAP Voyager antenna in favor of a
3D' high dipole antenna and a 31' high GAP Challenger antenna was
so substantial so as to warrant a new application. The Commission
deemed the application withdrawn, but expressed a willingness to
work with the applicant under a new permit application.
staff, in its communications with the applicant, was working in
light of the substance of the application as it was originally
proposed (with a yagi antenna). It appeared to Staff, even
without visual representations in the field, that the changes
made to the application all tended to reduce the visual impacts
of the project. For this reason, Staff supported and encouraged
the changes proposed by the applicant. Furthermore, based on the
recommendations of the Town's technical consultant, the solutions
offered by the applicant seemed to represent a good compromise
between the interests of the Town and the interests of the
applicant. Because of the small size and unique configuration of
the lot, it did not appear to Staff that there were many options
for the location of the proposed dipole antenna. For these
reasons Staff recommended that the commission approve the dipole
antenna solution as proposed by the applicant. It was the opinion
of Staff at the April 12th and 26th meetings that the withdrawal
of the GAP Voyager in favor of the dipole and GAP Challenger
antennas did not constitute a withdrawal or invalidation of the
application.
Staff believes that the efforts of the applicants and the
Commission came to such an awkward conclusion as a result of 1)
delays caused by exceedingly foul weather through the winter
TlBURON TOWN COUNCIL
STAFF REPORT
8/7/95
4
months, and 2) the constraints of the Permit streamlining Act.
The Commission wanted the opportunity to consider the applicant's
proposal in the field. The applicants, on the other hand, saw the
Commission's actions to let the interim operating permit expire,
declare the application withdrawn, and deny whatever proposal
might be left, as representing a general animosity towards the
application as well as being arbitrary actions not in keeping
spirit or technical requirements of PRB-1 and interpretive case
law.
Environmental Status
The project is categorically exempt from the requirements of CEQA
per section 15303 of the CEQA Guidelines.
RECOMMENDATION
Staff recommends that the Council take public testimony and
consider the facts, history, and unique circumstances surrounding
this project. Staff hopes that Council direction can help steer
the project towards a satisfactory resolution for all parties, as
was successfully accomplished with the recent HAM radio
application on Meadowhill Drive.
EXHIBITS
1. Appeal and additional letter of 5/1/95
2. Planning commission Resolution 95-08
3. Planning commission Resolution 94-24
4. Minutes from 11/9/94, 4/12/95, and 4/26/95 PC meetings
5. Letter from applicant rec'd 4/12/95
6. Memo from Town Attorney dated 12/5/94
7. Letter from applicant to Prichard dated 10/29/94
8. Letter from FCC Observer Grant Prichard dated 11/5/94
9. Report from Richard Karlquist received 1/30/95
10. Vicinity Map
\dan\tc19310.rpt
TlBURON TOWN COUNCIL
STAFF REPORT
6/7/95
5
~4/21/i995 12:50
4154352438
TOWN OF TI BLRON
PAGE 02
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TOWN OF TIBURON
NOTICE OF APPEA~ 0
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APPELLANn
N~e: Malcolm A, Misuraca and Victoria Eo Rri~Rnt
Ad~ 223 Deviso street. Tiburon. CA 94970
Telephone: 415/546-6430
(work) 415/435-3219
(home)
ACTION BEING APPFALED:
~ Town of Tiburon -- Planning Commission
Date of Action: April 1 2, 1 995
Name: of Applicant: Malcolm A. Misuraca and Victoria E. Brieant
Na~eofAppli~tion: 'Earn Radio Antenna Application
GROUNDS FOR APPEAL:
SEE ATTACHED
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Last Day to File: [ } :L Dale Received:
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4.154352438
EXHIBIT NO. I
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Grounds for Appeal
1. The planning commission seeks to regulate the operation of an
amateur radio station duly licensed by the federal Government under the
guise of administering the approval of antennas for high frequency and very
high frequency licensed radio transmissions. Grounds for appeal: The Town
of Tiburon has no jurisdiction over the operation of a federally licensed
amateur radio station. Interference with that operation is preempted by the
Interstate Commerce Clause of the U.S. Constitution and federal statute.
2. The planning commission has not acted in the spirit of compromise
in exercising its limited discretion over an antenna for licensed amateur radio
transmissions. The applicants, as the town's planning staff have emphasized,
have acted in a spirit of compromise. Grounds for appeal: The Town of
Tiburon is in violation of federal law in seeking to act arbitrarily,
restrictively, and without the mandated spirit of compromise in considering
the applicants' application for approval of amateur radio antennas.
3. The planning commission regularly has exceeded its jurisdiction in
dealing with the applicants' antenna application, as the town attorney has
repeatedly warned the commission in writing, by indulging itself in
considering claims of radio frequency interference with television or
telephone reception. This matter is preempted by federal law. Grounds for
appeal: The Town of Tiburon will not confine itself to relevant bases for
considering the applicants' application and has conditioned and attempted to
prohibit their operation of an licenses amateur radio station on the objections
of the Town to the possibility of radio frequency interference with other
FCC-licensed or approved products.
4. The planning commission has acted arbitrarily, unreasonably, and
antagonistically to federally-licensed amateur radio station operation by
attempting to prevent the previously-approved use of the applicants' existing
vertical antennas, which were approved for use during the period when the
applicants and the town's staff were working out comments from the town's
expert witness on radio frequency matters and neighbors of the applicant.
The planning commission has done this on expressly impermissible and
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punitive grounds, namely, a complaint from neighbor of interference with her
phone and television sets. Grounds for appeal: The Town of Tiburon is
acting in antagonism to federally-protected rights over which the town has no
jurisdiction.
5. The planning commission is acting contrary to the oplillon and
advice of the expert witness which it hired to comment on the applicants'
application. The expert's opinion places the applicants' current compromise
vertical antenna well below the threshold of antenna size and structure that
the town's expert has found are the minimum reasonable accommodations to
the applicant that fulfill the town's burden to respect federally-protected
rights. Grounds for appeal: The Town of Tiburon is acting arbitrarily,
unreasonably, and without appropriate discretion in departing from the norms
that must be respected for licensed amateur radio transmissions. The
commission speaks of limiting the time or duration of operation, the places
the applicants will be permitted to talk to, the frequencies used, and the
makeup and configuration of antennas necessary for transmission on licensed
bands.
6. The planning commission has ignored the advice and knowledge of
its planning staff, which have worked with the consistent cooperation of the
applicants to reach a compromise on the maintenance of amateur radio
antennas for the applicants' federally-licensed radio operations. The staff has
made reasonable agreements with the applicants, which the planning
commission has refused to honor. Grounds for appeal: The Town of
Tiburon is acting unreasonably and in violation of federal mandates that state
and local authorities must act in a spirit of compromise and accommodation
to federally-licensed amateur radio station transmissions.
7. The planning commission has attempted to force applicants to cease
operating their amateur radio station by purporting to revoke permission to
operate on an antenna that the commission previously expressly found was at
least a reasonable temporary use of their federally-licensed rights. They had
no basis for revoking the temporary use of that antenna other than indulging
the objection of a single person who complained of interference with her
television and radio. That neighbor has moved from the neighborhood as she
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has been seeking some reason to do quite apart from applicants' radio
transmissions. The applicants had in a spirit of cooperation installed filters
on her phone and television set, which had cured the alleged telephone
interference. Nothing satisfied this person, or the commission, for that
matter. Her television set contained external wiring to after-market speakers,
which do not yield to filters, and which violate FCC regulations requiring
manufacturers of appliances to filter out raio frequency energy. These issues
are not within the jurisdiction of the town, but are preempted by the Federal
Communications Commission. Grounds for aooea!: The Town of Tiburon
.
is acting on the basis of considerations that are outside its jurisdiction and
using those considerations to deny federally-licensed rights to the applicants.
The town is acting unreasonably and arbitrarily by forcing applicants to cease
using the antenna that the town had previously identified as a good interim
or temporary antenna while the applicants and the town staff attempted to
work out a compromise for the benefit of both.
8. The applicants discussed with the town staff their original proposal
to erect a Yagi or beam antenna; and the town staff stated that if the
application were amended to eliminate the Yagi antenna the application for
a vertical antenna should be "a piece of cake. II The applicants have removed
the Yagi, but without receiving the corresponding fair and even-handed
treatment that this compromise required. Grounds for aooea!: The Town of
Tiburon has acted arbitrarily and in abuse of discretion in representing that
a compromise by elimination of a Yagi antenna would be met by
corresponding reasonableness by the town. The application for the Yagi
antenna should be reinstated and processed immediately.
9. The planning commission declines to submit to the applicants a
written statement of the rulings made by the commission on April 9. That
statement was promised, but has not been furnished. The explanation of the
staff varies within the staff concerning what was done, and the explanation
of the senior staff person varies from the report in the local newspaper of
what was done. Grounds for aopea/: The applicants will appeal on any
additional grounds disclosed when the town finally issues a written statement
of the action taken in the planning commission on April 9.
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10. The Town of Tiburon is obligated to accommodate the licensed
rights of the applicants to operate on any approved frequency and to
maximize their licensed rights to operate with peak efficiency on all licensed
bands. Grounds for avveal: The town violates federal law by attempting to
prevent applicants from operating on all approved licensed bands, at approved
power, and with the efficiency of the most modern antennas. This is a
violation of federal law.
4
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May 1, 1995
Via Facsimile
Rob Ewing. Esq.
Town Attorney
Town of Tiburon
1155 Tiburon Boulevard
Tiburon, California 94920
Re: Appeal docketed April 24. 1995
Dear Mr. Ewing:
This letter is written to discuss the appeal that my wife and I filed from
the conduct and decision of the Tiburon planning commission on April 12.
The appeal was docketed April 24. as April 22 was the last day to file. but
was a Saturday.
The planning commission met on April 26. claiming that it had not acted
finally and precisely on April 12, and on April 26 it purported to deny my
wife and my application. In fact, the application had been denied on April
12, and the planning commission acted on April 26 out of an evident desire
to appear to have acted more reasonably and with due appreciation and regard
for the federally-protected and preempted rights presented by my wife and my
application.
It seems apparent to me that when the planning commission adjourned
on April 12. a good deal of off-the-record discussion among planning commissioners
and staff took place, al\ in what appears to me to be a plain violation of the
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Rob Ewing, Esq.
May 1, 1995
Page 2
Brown Act. The reason was that the commissioners had at their April 12 meeting
summarily denied our application, and staff were concerned that this action
would not stand up and reflected a basic animus to our application on grounds
that the commission had no business indulging and that could not be sustained.
It is about that animus that this letter is written and the appeal was filed.
The planning commission lacked jurisdiction to do what it did on April
26, in its effort to tidy up its April 12 action, and if its action was based 011
Brown Act violations--either through direct seriatim contact among commissioners
or contact using staff or others as a ~onduit---it will be separately challenged
on that basis.
The staff on April 26 claimed that our appeal was meant "to keep our
options open," as though the planning commission was entitled to place a gloss
on our appeal that authorized them to ignore it and the lapse of their jurisdiction.
Let me assure you that nothing of the kind is true, and it is the cavalier and
peremptory attitude toward this issue reflected in that statement that is swiftly
drawing us into an unnecessary risk of litigation.
My wife and I have cooperated with staff in the matter of our antenna
application in all the months since it was filed. You will find Mr. Catron's
staff reports replete with repeated acknowledgements of our spirit of cooperation.
This is nothing less than is required under the relevant federal precedent, as
your prior opinion letters have attempted to make clear to the commission,
but what has been lacking is the slightest semblance from the planning commission
of the town's equal burden of cooperation and respect for this federally-regulated
and preempted field. The commissioners have been uniformly hostile and invincibly
uninformed of the limits of their power; the staff cites to your opinion letters,
and there is no hint that the commission pays them the slightest heed,
At one point, Chairperson Greenberg wrote a series of questions to the
Town's expert on these matters, which were clearly calculated if possible to
elicit from him antagonistic and contrary statements to those I had given her
and the commissioners. Not only did Mr. Karlquist verify in virtually the same
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Rob Ewing, Esq,
May I, 1995
Page 3
terms everything that I had told the commission, but he gave his opinion that
an antenna 60 feet hi2h was the model for efficiency and adequacy that the
commission should afford me. We have heard little of Mr. Karlquist's opinion
since that enlightening episode.
The planning commission has now purported to revoke our application
in its entirety, including the authorization to maintain the Gap DX-Vrn antenna
for which authority was granted many weeks ago. No reason has been given
for revoking that authority, and the planning commission has none worthy of
the name. The chairperson of the commission personally called me several
months ago and asked me to move the antenna 15 to 20 feet to the southwest
of its original location, which again I did in a spirit of cooperation. She did
so as the only request or condition imposed on the operation of that antenna,
which the commission has now seen fit to claim must be dismantled. At the
beginning of the meeting on April 26, Mr. Schrier was incensed that the Gap
antenna was still standing and demanded to know whether the staff had told
me to dismantle the anteMa and shut down my ham radio station. Staff explained
that I had not been told to do so, to which the commissioner reacted with anger
and hostility,
At its April 26 meeting, the commission purported to deny the application
without prejudice, provided that it be amended only to include a wire antenna.
This ignored my express statement to the commission that my wife and I intend
to reassert our application for a Vagi antenna mounted on a retractable tower
and mast. If we apply for the Yagi, the commission claimed on April 26 that
we would be forced to pay a new application fee, which was another evidence
of the discrimination and effort to manipulate the application that has become
a hallmark of this group.
This planning commission is outside the law, and it is apparent that it
believes it need merely cite clich6s such as Hfor the good of the people" to
overlay successfully its hostility to the rights protected by the Federal
Communications Commission, Our appeal, which you may have seen, is meant
to penetrate this unlawful and unreconstructed practice.
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Rob Ewing, Esq.
May 1. 1995
Page 4
My wife and I are not willing to be treated as pariahs and with the hostility
and contempt that the chairperson typically shows, followed by the other
commissioners. The only commissioner who has been uniformly courteous
and determined to find a proper spirit of compromise has been Mr. Perlmutter.
I would appreciate your making certain that no effort is made to denigrate
or look aside from our appeal and your calling me at your convenience to discuss
ways and means to return the planning commission to its appropriate role.
Sincerely yours,
.
Malcolm A. Misuraca
(llraphioo .ipWuro)
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RESOLUTION NO. 95-08
A RESOLUTION OF THE PLANNING COMMISSION OF THE TOWN OF TIBURON
DENYING A CONDITIONAL USE PERMIT APPLICATION TO ERECT HAM RADIO
ANTENNAS AT 223 DIVISO STREET
CAP 59-131-07)
WHEREAS, the Planning commission of the Town of Tiburon does
resolve as follows:
Section ~ Findinqs.
A. The Planning Commission has received an application from
Malcolm Misuraca and Victoria Briaent requesting a
Conditional Use Permit to install antennas for amateur radio
operation at 223 Diviso Street. The originally filed
application included a "Yagi" beam antenna on a retractable
mast, a 31' high GAP DX-VIII Challenger antenna, and an 11'
high VHF antenna. The original application was amended in
October 1994, prior to its being deemed "complete" by Town
Staff. The October 1994 amendment deleted the Yagi antenna
and GAP Challenger antenna from the application and proposed
in their stead a 45' tall GAP DX-IV Voyager antenna. The
application was deemed complete on October 31, 1994. Said
application consists of File #19310.
B. The project site is situated in a hillside location with
views of the San Francisco Bay and the Golden Gate Bridge.
These views are shared by many homes in the neighborhood and
are commonly recognized to be of tangible value and
importance to local residents.
C. The proposed radio antennas, if not properly regulated and
restricted in height, have the potential to substantially
affect and degrade the views of San Francisco Bay from other
homes in the neighborhood, and affect and degrade in general
the aesthetic qualities of the neighborhood.
D. The Planning Commission held a dUly-noticed public hearing
on the application on November 9, 1994. At that hearing the
Planning commission considered the applicant's request for a
45' tall GAP DX-IV Voyager antenna. The Planning Commission
expressed its desire to see the proposed antenna in order to
evaluate its aesthetic and visual impacts. The Commission
continued the hearing to the January 25, 1995 meeting to
allow the applicant time to erect the proposed GAP Voyager
antenna. The Commission requested that the proposed antenna
be erected at least two weeks prior to the next hearing in
order to allow neighbors and the Commission to evaluate the
visual and aesthetic impacts.
PLANNING COMMISSION RESOLUTION NO. 95-08
4/26/95
1
EXHIBIT NO. 2-
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The Commission also adopted Planning Commission Resolution
94-24 which allowed the applicant interim use of a 31' high
GAP Challenger antenna and an 11' high VHF antenna which had
been erected on the site without benefit of a permit. The
permit also allowed the applicant to erect the proposed GAP
Voyager antenna on a temporary basis in order for the
Planning Commission to assess visual impacts. This interim
permit was set to expire by its own terms on 4-15-95.
E. The project was continued (without discussion) from the
January 25, February 8, and March 22, 1995 Planning
Commission meetings to allow the applicant to erect the
proposed GAP DX-IV Voyager antenna. The applicant was unable
to erect the antenna as requested by the Commission because
of unusually heavy and consistent rains, and the applicant's
schedule.
F. A Permit Streamlining Act extension was agreed to on 1-19-
95. This extended the Permit Streamlining Act deadline from
January 30, 1995 to April 30, 1995.
G. The applicant advised Staff that he finally erected the
proposed GAP Voyager antenna sometime in late March/early
April 1995, but had removed it almost immediately. The
applicant stated that he did not wish to pursue the GAP
Voyager antenna because the visual impacts were greater than
he had anticipated. The applicant withdrew the GAP Voyager
antenna from the application on April 12, 1995, and
requested instead to erect a "dipole" antenna and retain the
31' high GAP Challenger and 11' high VHF antennas.
H. The Planning Commission considered the project for a second
time on April 12, 1995. The applicant was not present at the
meeting. The Commission expressed its concern about the
substantial change in the application so late in the process
and the lack of information and visual representation
regarding the dipole antenna. The Commission expressed
concern that it had never seen any representation of the
dipole antenna on paper or erected in the field in order to
assess its visual and aesthetic impacts; nor had the
commission ever before considered the 31' high GAP
Challenger antenna as part of the application nor seen it
erected in various locations on the site to assess its
relative visual impacts. The Planning Commission decided to
allow the interim permit granted by Resolution 94-24 to
expire on April 15, 1995. The Commission continued the
project to the April 26, 1995 Planning Commission meeting in
order to allow Staff to research the status of the
application (if any) still pending before them.
PLANNING COMMISSION RESOLUTiON NO. 95-08
4/26/95
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I. On April 2., 1~~5. the applicant riled an appeal of the
.lannlnq Co~mi..ion'. decleion on April 12th to let the
inter 1m permit (authorized by P18nnin9 Commi..ion Re.olution
9.-2., .xpir. vithout taking any attlraativ. aotion to
ext.1I4 it.
J. Tft8 Plannlng Commi..ion consid.red the matt.r tor the thir4
and tlnal time on April 2', 1995. The applicant vae pree.nt
at tni. h.aring. The Planning Commi.eion found that the
amendm.nt to the application on April 12, 1~95, requesting
.to ereot a "dipole. antenna on a 30' ma.t and a 31' hiih GAP
Chal1.nger antenna, va. a eubetantlal change in tha
application not made at the behe.t of th. Town. The
Commie. ion tound th.t thie wae in ....nc. a "nav" project
for which tha applioant hed not tiled . nev application. The
pravioue application for a GAP voyaqer antenna had ~en
withdFawn by the applicant in hi. letter ot April 12, 1995.
The Commi.eion telt it va. not .ppropriate tor it to be
.Ubjected to a "lIovlnq target" application wh.n raced wit.h a
Permlt str..1I1ining Act deadl1ne.
K. EV.n though th. Commieeion had determin.d that a proper
application no longer .xi.ted .nd that a new One muet b.
filed, the Commia.lon deni.d the proj.~ a. pre.ented
vithout prejudioe. The Pl.nnin~ commi..ion exprese.d it.
de.ire to continu. working vith the applicant and dir.cted
that ree. ~ weived for any .ubatentielly similar future
epplioation tiled within JO deys. The Planning Cornmis.lon
Qrged the applieant to tile ae .oon a. po..ibl. tor a
renewal ot tha t..porary p.rmit Which had eXFired, and
pledged to h.ar the it.. et its next meet in; it tiled in
time to el10w proper leqal notice.
S~ction lL oenial&
NOW, THEREFORE BE IT RESOLVED that the Plennin; Co=mission
of the Town ot Tiburon doe. hereby deny tho .ubject application
(Conditionel U.. Permit application 11~310' vithout prejudlce
based upon the abOve tindings end oircumstance..
P~SSED AND ADOPTED at a regUlar meeting of the planning
Commi..ion ot the Town of Tiburon on April 26, 1995 by the
tollowing vot.e: .
ATTEST:
I
AYEs I
NOES:
ABSENT:
COMMISSIONERS:
COMMISSIONERS:
COMMISSIONERS:
Schrier. siewert
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RESOLUTION NO. 94-24
A RESOLUTION OF THE PLANNING COMMISSION
OF THE TOWN OF TIBURON APPROVING AN INTERIM CONDITIONAL USE
PERMIT TO OPERATE A HAM RADIO STATION WITH TWO EXISTING ANTENNAS
AT 223 DIVISO STREET CAP 59-131-07)
WHEREAS, the Planning Commission of the Town of Tiburon does
resolve as follows:
section ~ Findinqs.
A. The Planning Commission has received an application from
Malcolm Misuraca and Victoria Briaent requesting a
Conditional Use Permit to operate a ham radio station and
install an antenna for that purpose at 223 Diviso Street.
Said application consists of File #19310.
B. The Planning Commission has held a dUly-noticed public
hearing on November 9, 1994, and has heard and considered
testimony from interested persons.
C. The Planning Commission has found that the project is
categorically exempt from CEQA per Section 15303 of the CEQA
Guidelines.
D. The Planning Commission has considered FCC ruling PRB-1 in
its deliberations.
Section ~ Approval.
NOW, THEREFORE BE IT RESOLVED that the Planning commission
of the Town of Tiburon does hereby approve the Conditional Use
Permit subject to the following conditions:
1. This interim Conditional Use Permit approves the temporary
use of a 31 foot high GAP Challenger high frequency vertical
antenna and a Diamond X2200A VHF-UHF vertical antenna, by
amateur radio station KC6VDR and KC6VGU at 223 Diviso
Street. The GAP Challenger antenna shall be erected directly
on the ground without any additional mast elements.
2. This Conditional Use Permit specifically does not approve
the permanent installation of a GAP Voyager DX-IV high
frequency vertical antenna, or any other antenna until
specifically approved by the Tiburon Planning Commission.
The applicant is directed, in conjunction with the
PLANNING COMMISSION RESOLUTION NO, 94-24
11/9/94
1
EXHIBIT NO. "3
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consideration of the request to erect the GAP Voyager
antenna on a permanent basis, to erect the GAP Voyager
antenna for a period of two weeks beginning sometime between
January 7 and January 14, weather permitting. This trial
will be used by the Planning commission to better evaluate
the visual impacts of the proposed GAP Voyager antenna.
3. The permitted antennas are being approved on a temporary
basis only, while the Planning Commission considers the
applicant's request to erect a larger GAP Voyager high
frequency vertical antenna.
4. Permittee shall comply at all times with FCC regulations
concerning operation of this use.
5. Permittee shall maintain all antennas in an undamaged
condition. If visibly damaged, permittee shall repair or
replace the antenna to a condition consistent with this
permit.
8. This interim Conditional Use Permit shall expire and become
null and void on April 15, 1995, unless a time extension is
granted by the Planning Commission.
9. The Town of Tiburon reserves the right to amend or revoke
this interim Conditional Use Permit for just cause, in
accordance with Zoning Ordinance regulations of the Town.
PASSED AND ADOPTED at a regular meeting of the Planning
Commission of the Town of Tiburon on November 9, 1994, by the
following vote:
AYES:
COMMISSIONERS: Greenberg, Heckmann, Perlmutter,
Schrier, Siewert
NOES:
COMMISSIONERS: None
ATTEST:
l&7Ct a.J~~ -,
S OTT ANDERS N, SECRETARY
PLANNING COMMISSION RESOLUTION NO. 94-24
11/9/94
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CONSENT CALENDAR
1. Minutes of september 28, 1994.
2. Minutes of October 12, 1994.
Greenberg requested the following correction to the September 28,
1994, minutes:
* Page 5, the 2nd sentence in the 1st paragraph should read
"Anderson stated that you cannot deny the application
based on completion or even funding of the improvements."
There were no corrections requested to the minutes of October 12,
1994.
It was moved and seconded to adopt the minutes of September 28,
1994, as amended. Motion carried 5-0.
It was moved and seconded to adopt the minutes of October 12, 1994,
as presented. Motion carried 4-0 (Perlmutter abstaining).
PUBLIC HEARING
,~ 3. 223 DIVISO STREET: Conditional Use Permit to operate a HAM
radio station and install a HAM radio antenna. Malcolm
Misuraca and victoria Brieant, owners and applicants.
Assessor Parcel No. 59-131-07 (Resolution).
Greenberg explained the procedure for this public hearing item to
the public.
Catron stated that the applicants are requesting a Conditional Use
Permit to operate a HAM radio station from their residence. The
use would consist of a control console located inside of the
residence and two antennas located outside of the residence.
Catron explained that federal laws allow the operation of HAM radio
stations as a constitutional right which supersedes local zoning
ordinances.
Catron noted that the applicants originally proposed a "Yagi" style
antenna, but that was dropped from the application in an attempt to
minimize visual impacts on the neighborhood. The applicant now
proposes to erect a 45 foot tall high frequency (HF) vertical
antenna, and an 11 foot tall very high frequency (VHF) vertical
antenna. The proposed HF antenna includes several small elements
running parallel to the main vertical element at a distance of
approximately 6 to 8 inches, and a 80 inch diameter halo style ring
at the top of the antenna. The applicants advise that the larger
HF antenna is necessary to operate in the 160 meter band. The
existing 31 foot tall HF antenna on the site will not operate in
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the 160 meter band. The applicants have proposed two possible
locations for the larger HF antenna on the northwest side of the
house approximately eight feet apart. . Staff is not aware of any
significant difference in impacts between these two locations. The
proposed VHF antenna is an eleven foot tall whip style antenna,
which Staff considers to be relatively unobtrusive and is used for
local and relay applications.
Catron stated that correspondence has been received from several
neighbors complaining about interference. The Town is preempted
from all jurisdiction in interference matters. staff believes that
this issue is properly directed to the FCC.
staff recommends that the Commission consider the aesthetic impacts
of the proposed antennas and weigh those impacts against the
applicants rights to erect antennas which provide for reasonable
long distance communications. He said that the Commission must
show a good faith effort at accommodating the applicant's
interests, as the burden of proof is on the Town.
Schrier asked Catron if the EMF issue has been addressed and he
replied that he did not know if there is enough proven evidence to
make a determination.
Heckmann asked for basic criteria for what is considered to be
"reasonable" use. Anderson stated that there is no fixed standard
for this determination.
Malcolm Misuraca, applicant, stated that the effectiveness of
antennas is affected by their surroundings, including structures
and trees. He said that there are limited places on his property
that antennas will be effective and would not obstruct the Golden
Gate Bridge view from the neighborhood. He said that one location
would be the northwest corner of his property. He stated that the
antennas do not block the primary view of anyone in the area. The
"Yagi" antenna surpasses the effectiveness of a vertical antenna,
but due to view obstruction, they went with a vertical antenna.
He said that the 11 foot VHF antenna is probably not visible by any
of the neighbors. He said that the VHF antenna operates on line of
sight for short range use. The 45 foot HF antenna is for long
range communication, which is what HAM radio operators use most
frequently.
Mr. Misuraca explained how the sunspot cycle affects reception.
He said that the problem that all HAM radio operators will face for
the next five or six years is that we are coming to the low point
in the sunspot cycle. The sun operates on 11 years cycles of high
and low sunspot activity. In years of high sunspot activity, it
is possible to operate on a much higher frequency and as a
consequence of that, the antennas can be shorter. He stated that,
however, in years of low sunspot acti vi ty, it is necessary to
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operate on lower frequencies and the antennas must be higher for
the world-wide communication that Mr. Misuraca plans to do.
Mr. Misuraca said that Amateur Radio Operators have an obligation
to try and deal with neighborhood problems. He said that he has
tried to do that. He stated that the FCC and the Cable Company say
that the Samgiss', 239 Diviso street, reception problems are not
related to the operation of his radio. Mr. Misuraca said that he
received a letter from Grant Pritchard from the OOC San Francisco
Section, dated November 5, 1994, stating that Mr. Misuraca's
station is being operated in an appropriate manner.
siewert asked Mr. Misuraca how long he has been transmitting and he
replied that he started transmitting from the first location seven
months ago. She asked him how often he uses the radio and he
replied that he usually starts using the radio at 9 p.m. or at 8
a.m. during the weekdays and during the day on weekends. She asked
him if the proposed 45 foot antenna could be retractable and he
said that this particular type of antenna cannot be retracted,
jointed or telescoped. She asked him if he researched the lowest
possible height at which he could operate and on what grounds did
he base his decision. He stated that in order for an antenna to
function on a given frequency, it has to have a certain
configuration, which does not vary with location. The
configuration is a function of its physical length and its
electrical length, based on the laws of physics. siewert asked Mr.
Misuraca if the material or the color of the material of the
antenna would affect if. He stated that although he has never seen
anodizing of the antenna done, he feels that if it was possible,
all of the manufacturers would be doing it.
Schrier asked Mr. Misuraca what the existing 31 foot antenna is
used for and Mr. Misuraca replied that it is made by the same
manufacturer as the proposed ones and he replied that it used for
higher frequencies. Schrier asked if he planned to take the 31
foot antenna down once the proposed one is approved and he said
that he did.
Heckmann asked Mr. Misuraca if screening of the proposed antenna by
trees would be effective and he replied that it would only be
effective on the north side of his property. Mr. Misuraca said
that the antenna could be moved approximately 12 or 13 feet to the
southwest, away from the Samgiss', and although it would probably
reduce the interference, it would be more visually intrusive.
Perlmutter asked to whom it would be more visually intrusive and
Mr. Misuraca replied that it would be more visible to those driving
south on Centro West. Mr. Misuraca said that the antenna would be
a little more out in the open than in the other location, as there
would not be trees to shield it. Heckmann asked if additional
trees will be planted and Mr. Misuraca said that he would plant
more trees if it was made a condition of approval.
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Perlmutter asked what the diameter of the proposed 45 foot antenna
is and Mr. Misuraca replied 2" at the widest part, which is at the
base of the antenna, and 1 1/2" at the narrowest part. He stated
that this is slightly wider in diameter that the present antenna.
siewert stated that there is also an 80 inch diameter halo style
ring at the top of the antenna. Greenberg asked what the purpose
of the supports for the halo is and Mr. Misuraca said that their
only purpose is to hold the ring in place.
Heckmann asked Mr. Misuraca how many licensed HAM radio operators
there are in Tiburon and he said that there are 60 HAM radio
operators in Town, but he does not know how many actually operate.
Greenberg asked Mr. Misuraca to clarify what he needs in order to
communicate during high sunspot activity and he replied that 160
meters is the lowest HAM band and consequently offers the best
world-wide communication. He said that this lowest HAM band is
best for long distance communications, particularly at night during
low sunspot activity. Greenberg asked him if he was limited to 80
meters what type of communication would he have to give up. He
said that at 80 meters, weeks could go by without world-wide
communication. He mentioned that there is a 4 1/2 year trough in
sunspot activity and in 1997, we start getting out of the trough.
siewert asked if "Yagi" style and vertical antennas are the only
types of HAM radio antennas available and Mr. Misuraca agreed. He
stated that there are many different models of vertical antennas,
but all of them have to be roughly the same length, have the same
peripherals on the side and a halo or metal spoke-type structure at
the top in order to be operable. Greenberg asked if some vertical
antennas may be smaller that the one proposed with the halo at the
top and he replied that you would not find any much less obtrusive.
schrier asked Mr. Misuraca if his existing 31 foot antenna would be
satisfactory in the next few years when we when start getting out
of the trough and move into the high sunspot cycle and Mr. Misuraca
agreed. He stated that he and most HAM operators would take down
the taller antennas at that time in the sunspot cycle and use the
shorter ones, as it would give the operators more bands.
siewert asked Catron if this Conditional Use Permit runs with the
land or the current owner and Catron replied that Use Permits
generally run with the land. Anderson pointed out that, as
written, this permit would apply only to this particular operator.
Greenberg opened the public hearing.
Ali Samgiss, 239 Diviso street, said that since mid-January of 1994
he has heard Mr. Misuraca's voice on the HAM radio coming through
his television, stereo, telephone and answering machine for up to
four hours at a time. He stated that it starts as early as 6:45
TIBURON PLANNING COMMISSION MINUTES OF NOVEMBER 9, 1994 Minutes No. 726
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a.m. He mentioned that the interference problem stopped between
May 12 and October 8, 1994, but has resumed again. He contacted
Mr. Misuraca about the problem and Mr. Misuraca came to his house
and added filters to his equipment. Mr. Samgiss said that Viacom
Cable stated in their letter dated November 8, 1994, that the
interference was not entering their equipment via the cable system.
Mr. Samgiss stated that his equipment is average in quality. He
said that he called the manufacturers of his equipment, who stated
that his own equipment is in compliance with the FCC. He mentioned
that the lots in his neighborhood are small, the roads are narrow
and there is no current shielding of the antennas from trees. He
said that his neighbors have reported that they have the same
problem with interference from Mr. Misuraca's radio. He said that
there is also the matter of the aesthetics as it relates to the
obtrusive look of an antenna in the landscape of Old Tiburon.
schrier asked Mr. Samgiss, with the knowledge that the Planning
Commission's role is to consider the aesthetic impacts of the
proposed antennas only, what he would like to see the Commission do
about this situation and he replied that he would like to see the
new antenna placed at a previous antenna site used in August of
1993. He said that, at that site, the antenna was visible, but
there was no interference.
Perlmutter asked Mr. Samgiss what he heard coming through his
equipment and he replied that he has hears only Mr. Misuraca I s
voice in a one way conversation as he is communicating with people
through his HAM radio.
Llewellyn Wommack, 240 Diviso street, stated that she can also hear
Mr. Misuraca's voice coming through her equipment and feels that
this is an invasion of her privacy.
Dick Ward, 1952 Centro West street, said that he is concerned about
EMF safety. He would like Mr. Misuraca to transmit on the lowest
power possible. He stated that he would like to propose that a
temporary permit be granted until more is known about the danger of
EMF's emanating from Mr. Misuraca's system.
Bob Egner, 243 Loma Avenue, urged moderation of approval for view
and aesthetic purposes. He said that he worked eight years to have
the Eucalyptus trees removed across the street from the proposed
antenna site, on Centro West. He suggested that only a temporary
permit be granted to Mr. Misuraca.
Christine Bassin, 230 Diviso street, said that she has experienced
interference with her telephones and computers. She wanted to know
if a retractable antenna or a increased number of shorter antennas
could be installed instead of one tall one. She also wanted to
know why the story poles had not been erected yet. She requested
that when they are finally erected, they also have a representation
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of the halo attached in order to get the full impact.
Michael Bennett, 2077 Centro East Street, mentioned that the
Buxtons, who live at 220 Diviso street, are having interference
problems with their telephones. Mr. Bennett asked Catron if a
permit was granted to Mr. Misuraca for his existing HAM Radio
operation and Catron replied that no permit had yet been granted.
Mr. Bennett said that the planting of trees is not the answer, as
they would block views more than an antenna would. He said that
the neighbors should contact the FCC about their interference
problems. He stated that he appreciates the services that HAM
operators provide in emergency situations, but he primarily
considers it a hobby, not a necessity.
Charles Locati, 260 Diviso street, said that the neighborhood views
were returned to them when the Eucalyptus trees on Centro West were
cut down. He said that the views will be lost again with the
installation of this antenna. He obj ects to approval of this
application.
Mr. Misuraca stated that he wanted to address the neighbors I
comments. He stated that Mr. Samgiss was not home when he filtered
their equipment. He also wanted to assure Ms. Wommack that he was
not eavesdropping, nor did he have the technical capability of
eavesdropping on her conversations. He stated that he has to
operate at 1500 watts in order to call his friend in New Zealand.
He said that he owns two televisions and has no interference from
his HAM radio equipment on his other equipment. He said that he is
happy to help any neighbor experiencing interference by adding
filters to their equipment.
Greenberg asked what is the highest up on the 45' vertical antenna
will the guy wires be attached and it was determined to be
approximately 38 to 40 feet. siewert asked how many guy wires
there will be and Mr. Misuraca replied that there will be four.
Schrier asked what the diameter of the guy wires will be and Mr.
Misuraca said that, if polypropylene material is used for the guy
wires, they will be 3/16" in diameter.
Schrier asked Mr. Misuraca if there are satellite dishes available
that would be satisfactory for this proposed use, instead of the
more visually obtrusive vertical antenna and he replied that there
are satellite dishes available that operate on extremely high
frequencies, but they are not for world-wide communication.
Greenberg asked if multiple short antennas were possible and Mr.
Misuraca was unsure what she was referring to unless she meant a
phase vertical antenna.
Schrier asked Mr. Misuraca how long it would take to erect the
proposed vertical antenna and he replied that it would take about
a day. Schrier asked if he knows if the antenna will work before
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he puts it up and Mr. Misuraca replied they will not know until it
is put up.
Schrier asked Mr. Misuraca why he did not obtain a permit for the
existing 31' antenna. Mr. Misuraca stated that he filed an
application some time ago, but the problem was that once he decided
not to use the "Yagi", he has been experimenting with the 31'
antenna to see if it would be operable and to see if it would be
acceptable within the community to try and avoid the problems and
delays that occurred with the Al Burnham's HAM radio application.
siewert asked Mr. Misuraca how often he calls his friend in New
Zealand and he replied he tries to call him every day, but only
gets through occasionally.
There being no one else wishing to speak, the public hearing was
closed at 9:08 p.m.
Siewert stated that story poles, which have not been erected yet,
are needed in order to get an idea of the visual impact. Greenberg
mentioned that this request was made of the applicant, but due to
the major storm this week, Mr. Misuraca could not put the story
poles up. She asked Mr. Misuraca to seriously investigate painting
or anodizing the antenna, as she said that black or dark brown
colored antennas are less obtrusive. She asked Mr. Misuraca to
check out other al ternati ves to the 45' vertical antenna. She
mentioned that the previous applicant for a HAM radio antenna, Al
Burnham, 42 Meadowhill Drive, installed a 30 foot antenna and
suggested that perhaps this would work for Mr. Misuraca. She feels
that the south side of the site might be less obtrusive. She does
not think that planting trees as a buffer would be effective. She
said that Mr. Misuraca's main use of the antenna is for his hobby
and questioned why a hobby needs to get 100% reception. She said
that his use as a hobby must be balanced with his neighbors' views.
She recommended that a condition be made that the height of the
antenna be lowered as we move into the higher sunspot cycle. She
feels that no decision can be made tonight.
Schrier stated that he agrees with Siewert. He feels that there
should be a three year review period, reduced to a one year review
period if an EMF health issue is determined. He does not feel that
the fact that this is primarily a hobby should affect his ability
to get adequate reception. He want to see the applicant look into
alternate, less obtrusive locations. He said that he would like to
get advice from an expert in the field of HAM radio antennas.
Perlmutter said that he would like to see reduced interference
problems, which he realizes is not the in the Commission's hands,
and reduced visual impact on the neighborhood. He stated that
alternative less obtrusive locations should be sought out. He said
that there should be a height limitation of the antenna at 3D', if
TIBURON PLANNING COMMISSION MINUTES OF NOVEMBER 9, 1994 Minutes No. 726
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feasible. He recommended that there be a one year trial period.
Heckmann expressed concerns about the visual impact of such an
antenna. He said that the Town wants to maintain views. He has
heard from the neighbors that the views have just been opened up
with the cutting of the Eucalyptus trees across from the proposed
site. He would like to see a shorter antenna used. He said that
he would like to see how the antenna will look when it is in place
and how it will look from the neighborhood.
Schrier stated that he would like Town Attorney Ewing's input.
Greenberg said that she agrees with all of the Commissioners
comments. She is concerned about view impacts. She said that she
can empathize with the impact to all of the neighbors. She did not
feel that it was a good idea to allow Mr. Misuraca to operate
without permits and that penalties should be charged. Anderson
stated that the applicant submitted an application, but it cannot
be determined if it is operable until it is used, thus a permit was
not given at that time. She said that she could approve this type
of vertical antenna. She said that it is not attractive and
exceeds the roof height, but it is slender with minimal visual
impact. She feels that it is inappropriate to place the structure
in of the vicinity of where the eucalyptus trees once were. She
stated that she would like the opportunity to look at other types
of antennas in Town.
Greenberg asked Al Burnham, 42 Meadowhill Drive, HAM Radio Operator
with a fairly recent Conditional Use Permit approval, if he painted
or anodized his antenna and he said that he did. She asked if his
antenna is 30' tall and he agreed. He said that his antenna is a
beam with 28' crossbar elements, not a vertical, and the two
operate completely differently. He said that the beam antenna
works at a different height than the vertical, which needs a
particular height in order to work.
Greenberg recommended that a neighborhood meeting be held on the
site and that story poles placed in different locations in order to
get its full impact on the views. She feels that it should be made
a condition that Mr. Misuraca lower his antenna during the years of
high sunspot activity. She also agrees that an independent expert
should be hired.
Greenberg asked Don Batten, HAM radio operator, 29 Mercury Avenue,
how tall his antenna is and he replied that normally operates at
45' .
Greenberg asked Anderson how many of the 60 HAM radio operators in
Tiburon have permits and he replied that only one HAM radio
operator, AlBurnham, has a permit.
TIBURON PLANNING COMMISSION MINUTES OF NOVEMBER 9, 1994 Minutes No. 726
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Anderson stated that if the Planning Commission requires the
antenna to be lower than 45', and since the burden is on the Town,
the Town will need to hire an expert. Anderson was not sure if an
expert could tell, just by looking at heights and locations,
whether or not it would work. Anderson stated that the HAM radio
must be operable in order to be able to have an expert test it.
The Commission requested that Town Attorney Ewing research other
legal cases regarding antennas that would discuss what is
considered "reasonable" operation. The Commission requested the
applicant to pick the best location, erect a 45' story pole and the
Commission will interpolate it in various locations. Mr. Misuraca
requested permission to put up the actual 45' antenna that he had
already, purchased instead erecting a story pole and the Commission
agreed that he could do that.
The Commission agreed that the antenna needs to be erected in order
to show the aesthetic impacts to the Planning commission and to the
neighbors. The 45' antenna is to be up for two weeks with the
erection date between January 7 and January 14. Mr. Misuraca is to
consult with Mr. Burnham about what color to paint or anodize the
pole. The Commissioners are to put their questions in writing for
the expert. The Ham Radio Expert is to visit the site and report
back to the Commission with his findings.
M/S SChrier/Perlmutter (5-0) to grant a temporary Conditional Use
Permit to operate a 31' HAM radio antenna until the permanent one
is issued.
Anderson stated that this application is subject to the Permit
streamlining Act and the deadline is sometime in early February
1995, so that the Commission may want to make a decision or ask for
an extension of 90 days, if the applicant concurs. The Commission
decided not to ask for the extension at this time.
It was moved, seconded, and unanimously carried to continue this
item to the January 25, 1995, Planning commission meeting.
COMMISSION AND STAFF BRIEFING (Continued)
Greenberg said that she read that the Martha Company DEIR would be
ready approximately six months after the Scoping Session. Anderson
stated that he feels that this is optimistic due to the need to
conduct the special plant studies which will go on until the end of
June or the end of the blooming season. He said that some EIR
Consultant proposals have said that they will not have the DEIR
ready before Fall 1995 for this reason.
The Commission discussed the logistics of the Martha Company field
trip with Staff.
TIBURON PLANNING COMMISSION MINUTES OF NOVEMBER 9, 1994 Minutes No. 726
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more changes to Precise Plans unless there is an overwhelming need.
He said that he spoke with Mr. Lang and he is willing to agree to
the conditions, as precisely presented in his letter.
There being no one else wishing to speak, the public hearing was
closed at 8:15 p.m.
siewert said that the Planning commission cannot foresee all of the
variables that can occur once raw land is developed, and the Town
should be able to amend Precise Plans with discretion. She said
that there can be reasons to change them. Siewert supports this
application.
Perlmutter
permission
Commission
said that since the neighbor at 2 Cibrian Drive got
for a secondary envelope, this puts the Planning
in the position of having to approve this application.
Schrier said that the Planning commission is not bound to approve
this application. Each Precise Plan amendment should be looked at
on its own merits. He still questions whether there is any slide
danger, but no evidence has been presented to indicate that there
is still danger. He said that he would approve this application.
Heckmann said that he supported this application when it previously
came to the Planning commission. He feels that the soils concerns
have been adequately addressed. He said that with the conditions
proposed by the applicant, there should be limited impact. He
favors this application.
Greenberg said that she cannot support this application. She feels
that Precise Plans should be adhered to, unless there is an
overwhelming need to change them.
It was moved, seconded and unanimously carried to continue this
item to the April 26, 1995, Planning Commission meeting, to allow
Staff to edit Mr. Lang's additional conditions and attach them to
the draft resolution.
Chairman Greenberg suggested that Item 2 be heard next and the
Commission agreed.
vi 2.
223 DIVISO STREET: Conditional Use Permit to operate a HAM
radio station and install a HAM radio antenna. Malcolm
Misuraca and - victoria Brieant, owners and applicants.
Assessors Parcel No. 59-131-07 (Resolution).
Catron said that this item was last heard on November 9, 1994. At
that time, the Commission approved a temporary permit, which will
expire on April 15, 1995, to allow the applicant to use the
antennas existing on the site and to erect the proposed antenna.
TIBURON PLANNING COMMISSION MINUTES OF APRIL 12, 1995 Minutes No. 735
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Catron said tha~ the applicant did erect the proposed 45 foot high
antenna, but found that it would be too visually obtrusive. The
applicant submitted a letter today stating that he is formally
withdrawing his application for this antenna. The applicant is now
asking the Commission's approval to experiment with different
configurations of a dipole antenna in order to find an optimum
configuration.
staff appreciates the applicant's efforts to work with the Town to
achieve a compromise.
staff is proposing that the applicant be allowed to use the
existing antennas on the site, which do not pose much of an
aesthetic impact on the neighborhood, and be allowed to experiment
with a dipole antenna for a period of six months. Once an
acceptable configuration is found, the applicant would return to
the Commission to secure final approval. Catron said that the
applicant's neighbors have complained about interference and EMF's
from the existing antennas. While staff can deal with aesthetic
issues, the neighbors need to work with the FCC on these other
matters.
Schrier asked Catron if Staff is recommending that the existing
antenna stay where it is located. Catron replied that,
aesthetically, this is as good as any other location and if it was
moved to the other side of the lot, it would stand out more.
Greenberg opened the public hearing.
Noushin Samgiss, owner of 239 Diviso Street, said that in December
of 1994, her family temporarily moved out, and are now renting
their house out, due to problems caused by the applicant's antenna.
She played a tape demonstrating interference generated from the
antenna through their television set. She said that the
interference could be heard four to six hours a day. She said that
she was the- one who informed the Town that the applicant was
operating a HAM radio. She said that she has no objection to his
hobby, but she does not want his antenna next to her house. She
suggested that he move the antenna to the middle of his property.
She said that it would only block his view. She urged the
Commission not to extend his temporary permit.
There being no one else wishing to speak, the public hearing was
closed at 8:42 p.m.
Schrier suggested that the Commission not renew the temporary
permit until the applicant comes forward. He said that the
applicant should be required to submit a new application for the
existing antennas and until he does, he cannot operate his HAM
radio. The Commission agreed. Catron stated that it is his
interpretation that the applicant is applying for the existing
TIBURON PLANNING COMMISSION MINUTES OF APRIL 12, 1995 Minutes No. 73S
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antenna with this application. In other words, the applicant has
the same application he has always had, he is just amending it.
Catron stated that Staff has no control over the use, only over the
antennas.
siewert asked Ms. Samgiss if she ever contacted the FCC.
Samgiss said that she called the FCC in Washington D.C. and
said that the Town has jurisdiction over interference.
Ms.
they
Anderson stated that the FCC did send their representative out and
subsequently prepared a report that was sent to Staff and then
forwarded to the Planning Commission. The FCC identified what they
think is the problem causing the interference. In no way did they
say it is the Town's issue to deal with, as the FCC has
jurisdiction over interference.
Heckmann asked if there is a valid application for the existing
antenna and Catron replied that he is interpreting this to be
correct, based on his conversations with the applicant.
Greenberg said that the Town may have an application, but what the
Commission has before it formally is a resolution that is asking it
to approve permanent use of a 31 foot high GAP Challenger high
frequency vertical antenna and a Diamond X2200A VHF-UHF vertical
antenna; and to allow the applicant to experiment with different
"dipole" antenna configurations. She said that the Commission
needs more information from the applicant in order to make a
decision. She said that she wanted the total configuration before
her for approval, not approval piece by piece.
Catron suggested that since the applicant is not here, the
Commission may want to continue the whole item.
Greenberg expressed that she did not want to continue the item.
She stated that the letter from the applicant to Staff dated April
12, 1995, withdrawing his application to erect a Gap DX-IV antenna
due to its visual obtrusiveness and asking approval to try a long
wire antenna, was just received today by the Commission. She was
annoyed that the applicant did not have the courtesy to tell Staff
that he would not be here tonight. Catron said that the applicant
did intend to be here tonight.
M/S Schrier/Perlmutter (5-0) to allow the temporary Conditional Use
Permit that was granted to expire after April 15, 1995.
Greenberg said that Staff should send a letter to the applicant
stating that he is not to operate the antenna after the expiration
date.
Due to the applicant's request today to be allowed to experiment
with various dipole configurations and due to his lack of presence
TtBURON PLANNING COMMISSION MINUTES OF APRIL 12, 1995 Minutes No. 735
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at tonight's meeting to provide further information, the Commission
discussed a future meeting date to discuss this item. Catron
mentioned that there is a Permit streamlining Act deadline of April
30, 1995, requiring this to be heard at the next Planning
Commission meeting. Greenberg asked Staff to have the Town
Attorney do research to see if the Permit Streamlining Act still
applies, due to the substantive changes to this application.
It was moved, seconded and unanimously carried to continue this
item to the April 26, 1995, Planning Commission meeting.
PUBLIC HEARING
Chairman Greenberg suggested that Item 5 be heard next and the
Commission agreed.
5. 1 BLACKFIELD DRIVE; CONDITIONAL USE PERMIT TO ADD A 280 SQ.
FT. ADDITION TO MILANO' S ITALIAN RESTAURANT. Assessors Parcel
No. 34-212-18, Roger Milano, applicant; Edward and Mary Cheu,
owners; Mohamad Sadrieh, Architect (Resolution).
Catron stated that this is a request by the applicant, Roger
Milano, to add a 280 sq. ft. addition to the rear of his
restaurant. The addition would be located in the alley behind the
restaurant and would be used for storage, a new walk-in freezer,
and a garbage and recyclables collection area. The Zoning
Ordinance requires Conditional Use Permits for any additions in the
Neighborhood Commercial Zone. The Planning Department has recently
allowed the applicant to expand into an adjacent tenant space and
increase the seating capacity of the restaurant by 12 seats without
a Conditional Use Permit. Staff reasoned that the potential
parking demand created by the additional 12 seats was offset by the
loss of area in the adjacent retail tenant space (the pharmacy).
This property is the only property within the Town which is in the
Shopping Commercial Land Use Designation which has a .5 FAR limit
and the project meets that. However, it is in the Neighborhood
Commercial Zone which has the .17 FAR limit and the project would
exceed that.
staff recommends that the commission consider
pursuant to General Plan Policy DT-12 and
resolution granting the Conditional Use Permit.
a FAR exception
adopt the draft
Heckmann asked Catron why there is an inconsistency between the FAR
limits in the Land Use Designation and the Neighborhood Commercial
Zone and Catron replied that it was an oversight in the General
Plan.
Greenberg asked Catron if this would go before the Design Review
Board. He said that Staff is recommending that the Commission
waive Design Review.
TIBURON PLANNING COMMISSION MINUTES OF APRIL 12, 1995 Minutes No. 735
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construction, a geotechnical engineer will review the
site and certify the structural integrity of the soils
and the pool."
* Page 9, the last sentence in the 4th paragraph should
read "She said that she wanted the total configuration
before her for approval, not approval piece by piece."
Heckmann requested the following correction to the April 12, 1995,
minutes:
* Page 6, the 5th paragraph from the bottom should read
"Perlmutter asked Mr. Lang how he would drain the pool,
if needed. Mr. Lang replied that it would drain through
the storm drains."
Schrier requested the following correction to the April 12, 1995,
minutes:
* Page 7, the 1st sentence in the 4th paragraph should read
"Schrier said that the Planning Commission is not bound
to approve this application."
It was moved and seconded to adopt the minutes of April 12, 1995,
as amended. Motion carried 4-0.
UNFINISHED BUSINESS
I 2.
223 DIVISO STREET: Conditional Use Permit to operate a HAM
radio station and install a HAM radio antenna. Malcolm
Misuraca and victoria Brieant, owners and applicants.
Assessors Parcel No. 59-131-07 (continued from April 12,
1995). (Resolution)
Catron said that this item was continued from the April 12, 1995,
Planning commission meeting to allow Staff to gather information
and to clarify the status of the application, given the withdrawal
of the 45 foot tall GAP Voyager DX-IV antenna from the application
on April 12, 1995.
Catron mentioned that at that meeting, the Commission decided to
allow the temporary Conditional Use Permit to let the applicant
operate his existing antennas expire after April 15, 1995.
Catron stated that the applicant has appealed the April 12, 1995,
decision of the Planning Commission. He said that a copy of the
appeal has been given to each Commissioner.
Catron stated that the application currently consists of:
1. Request for continued use of the existing 31' tall GAP
TIBURON PLANNING COMMISSION MINUTES OF APRIL 26, 1995 Minutes No. 736
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DX-VIII Challenger antenna and the other smaller VHF
antennas existing on the site in their current locations;
and,
2. Request for permission to experiment with a dipole
antenna, which consists essentially of a long wire. The
applicant requests permission to experiment with
different configurations of the dipole antenna in order
to find an optimum configuration. Once an acceptable
configuration is found, the applicant would return to the
Commission for approval of a finalized location for the
dipole antenna.
Staff is recommending that the Town allow the applicant to use up
to a 30' structural mast to support the dipole antenna initially in
order to see if he can get adequate reception.
Staff is very pleased with the applicant's decision to withdraw the
GAP Voyager DX-IV from the application. Staff believes that a
dipole antenna will be a good compromise between the needs of the
applicant and the concerns of the neighbors.
Staff believes that the existing 31' tall GAP Challenger antenna
has a minimal impact on the neighborhood and views. Staff also
believes that the present location is appropriate to minimize
visual impacts. Catron mentioned that the Town's technical
consultant has acknowledged that this antenna will be of minimal
effectiveness in the corning years of low sunspot activity. The
applicant is requesting the dipole antenna which will work during
periods of low sunspot activity.
Staff recommends that the applicant be permitted to experiment with
different dipole antenna configurations for a period of 90 days.
At the end of the experimentation period, the applicant would
return to the Commission with a proposal ,for a permanent
configuration.
Catron said that the Permit Streamlining Act deadline is April 30,
1995, so the Planning Commission must take action on this project
at this meeting or at another meeting held prior to that date. No
additional Permit Streamlining Act extensions can be granted.
Staff recommends that the Commission take public testimony and
adopt the draft resolution which allows the applicant to use the
existing antennas on the site, and allows the applicant to
experiment with various dipole configurations for a period of 90
days.
Schrier asked Catron if the applicant was informed after the April
12, 1995, Planning Commission meeting that he had to take the
antenna down after the expiration date of April 15, 1995. Catron
TIBURON PLANNING COMMISSION MINUTES OF APRIL 26, 1995 Minutes No. 736
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stated that the Commission directed Staff to tell the applicant
that he is not to operate the antenna after the expiration date.
The Commission only briefly mentioned that the antenna should be
taken down if a neighbor complained and none did. Greenberg asked
Catron what the applicant was told and he said that the applicant
was told that his permit was allowed to expire, and this item was
continued to tonight's meeting to allow him to provide additional
information.
Schrier asked Catron to explain the process for the appeal
submitted by the applicant. Catron said that the applicant filed
the appeal in the event that it was determined by the Commission
that he did not have a proper application and thus he would be left
with nothing but a terminated permit.
Schrier asked if the appeal would be heard by the Town Council at
the next meeting. Catron replied that it would be heard by the
Council when it could be agendized.
Malcolm Misuraca, applicant, stated that he has -made efforts to
compromise. He feels that these efforts have been received well by
Staff, but not by the Planning commission. He said that he is a
resident of the community who has made a legal application. He
stated that he filed the appeal to show where the Commission is off
on the wrong foot.
Siewert asked Mr. Misuraca if he felt that his lack of attendance
at the last meeting would have an effect on the Planning
Commission's decision. He replied that he did not. He said that
he was ill and he did not think by not attending, he would be taken
advantage of by the Commission, who he said proceeded in a very
irresponsible way.
Heckmann asked Mr. Misuraca about the nature of the dipole antenna
mast and if he has a location in mind for the mast. Mr. Misuraca
replied that the mast would be made of PVC 'pipe or wood, be
approximately 30' in height and about 2" in diameter. He said that
the dipole is a wire antenna with the wires extending from either
side of a single wire on the mast, would be in an inverted "V"
configuration with the two wires being 86' apart. Schrier asked
Mr. Misuraca where the least obtrusive location for the mast would
be and he replied that it would be next to his house, although it
would not operate as well as if it was located out in the open and
away from the house.
Schrier asked Mr. Misuraca if the smaller antennas he was using
before are located in the best location from a visual standpoint
versus an operational one. He replied that this type of antenna is
a lot less susceptible to location problems as the transmission
only has to get to San Francisco, where the repeater station is
located. Schrier asked if they could work if they were moved
TIBURON PLANNING COMMISSION MINUTES OF APRil 26. 1995 Minutes No. 736
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against the house and he said that they could.
Greenberg asked Mr. Misuraca what he thinks would be the shortest
reasonable amount of time he would need to experiment with the
dipole antenna. Mr. Misuraca said that two months would probably
be sufficient time, but he mentioned that we are at the bottom end
of the sunspot cycle, so it is difficult to tell.
Schrier asked Mr. Misuraca if the dipole antenna does not work,
what would he apply for then and he replied that he would probably
ask for the Yagi again, although he knows that it would be visually
obtrusive. Schrier asked if the 31' antenna could be moved closer
to the house. Mr. Misuraca said that the chicken wire in the lath
and plaster of his house would act as a filter for the antenna, and
thus would affect its effectiveness.
Greenberg opened the public hearing.
Noushin Samgiss, owner of 239 Diviso Street, requested that Mr.
Misuraca's existing antenna be moved away from her~roperty so that
she can move back into her house. She said that she has nothing
against his operation. Schrier asked if it is an eyesore for her
and she replied that it is not. She is concerned about the
possible effects of EMF's on her daughter, whose bedroom is near
the antenna.
There being no one else wishing to speak, the public hearing was
closed at 7:57 p.m.
Heckmann has some concern about the nature of the dipole antenna.
He said that the mast material is not well defined. He recommends
that it be as visually unobtrusive as possible. He said that the
mast should be as small in diameter as possible and metal with a
dark finish. He feels that the location of the existing 31'
antenna is the least obtrusive on the property. He asked that a
site plan be done showing the location of the proposed dipole
antenna, as the scale on the current plan is too small. .
Siewert proposed some clarification of the resolution regarding
wavelength versus size of the antenna. She agrees with Heckmann
that the mast should be as small as possible and a dark color.
Schrier agreed with Heckmann and Siewert about the specifics of the
antenna mast, as long as it does not interfere with use. He said
that he would like to add a condition that the applicant try other
locations on the property for the existing 31' antenna and that he
keep a photo log of this.
Greenberg said
permit for the
permit for the
that she would prefer to
three requested antennas,
two existing antennas.
issue another temporary
rather than a permanent
She wanted the Planning
TIBURON PLANNING COMMISSION MINUTES OF APRIL 26, 1995 Minutes No. 736
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Commission to assess the impacts of the whole proposal, rather than
do it piecemeal. Greenberg asked how the Permit streamlining Act
would apply in this case. Anderson replied that this is the same
application and the applicant has been amending it in response to
issues that have been brought forward that were perceived as
problems. Anderson said that this is not generally considered
grounds for considering this is as whole new application. He said
that the applicant is trying to work with the Town to come up with
something less obtrusive. Anderson said that one 90 day extension
has been given and the Town cannot give any more.
Greenberg stated that if the dipole antenna is part of the same
application, the Commission does not have enough information to
approve it tonight. She said that the application changed
radically when an entirely different antenna was requested by the
applicant very recently. She said that the Commissioners have not
seen it, yet the Commission is under the original timeframe.
Anderson said that unless the Commission is going to deny the
project, conditional approval needs to be given. .Catron said that
whatever restrictions the Commission wants to put on the approval,
it should be for the minimal practicable regulation to accomplish
the purposes of the Town.
The Commission and Staff had an in-depth discussion about this
item, whether this is considered one or two applications and the
ramifications of approval or denial of the project.
Schrier asked Mr. Misuraca to draw a dipole configuration. Mr.
Misuraca drew the proposed dipole antenna on a chalkboard and
explained the configuration.
Siewert feels that the Commission is being put in an awkward
position as representatives of the rest of the community, as they
never got to see even a representation of the proposed 45 foot
antenna. Schrier said that the material difference in this
application was that the 45 foot antenna was to replace the 31 foot
antenna. Greenberg questions whether the Commissioners really have
the same application before them now. Anderson agreed that the
application has been amended several times and the Commission has
not had an opportunity to visualize different locations in the
field.
Schrier stated that he would propose to deny the application for
the dipole antenna and grant another temporary use permit for 90
days for the existing 31' antenna and the other smaller VHF
antennas. He feels that the applicant should submit a new
application for the dipole antenna and the Commission could grant
a temporary use permit for 90 days to allow the applicant to
experiment with the dipole antenna and then return to the
Commission for approval of a finalized location. Schrier said that
TIBURON PLANNING COMMISSION MINUTES OF APRIL 26, 1995 Minutes No. 736
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the problems he is having are that he has not seen the dipole
antenna in the field and he believes that the applicant's request
for a dipole antenna is a new application.
Anderson said that if the Commission's reasoning is that this
application has been changing so fast and furiously that the
Commissioners have not had an opportunity to see what is actually
being proposed and analyze it from an aesthetic viewpoint, that
would be the basis for denying the application without prejudice
for resubmittal. It is the Commission's option to waive the fees.
In the meantime, the Commission may want to grant another temporary
use permit for the existing antenna. Greenberg pointed out that
the application did not move forward quickly because of the
inclement weather, because the applicant did not get a chance to
test what he initially proposed until very late in the process, and
the proposal was meaningfully changed very recently, right up
against the Permit streamlining Act deadline.
Schrier asked Mr. Misuraca if a new application was approved for
the dipole antenna, how long would it take for him.to erect it. He
replied that it would probably take a week to prepare it to meet
the Commission's requirements and size and color, and to erect it.
Schrier asked him it he could use the existing 31' antenna now if
he was given permission to use it again and he replied that he
could.
Catron explained to the Commission how their goals could be
achieved by modifying the resolution. The Commission did not
support this approach.
Anderson mentioned that if a new application is required, it has to
be publicly noticed. If Mr. Misuraca turned in a new application
immediately, a notice could be published in the I.J. newspaper and
this item could heard at the next Planning Commission meeting on
May 10, 1995.
Schrier asked Staff if the Commission denies the application as
submitted, can it grant a temporary use permit for the existing 31'
antenna. Anderson replied that if the Commission denies his
application, it is no longer valid at all.
M/S Siewert/Heckmann (4-0) to deny the Conditional Use Permit
application without prejudice, as the application has totally
changed and it has changed so recently that there has not been
sufficient time for the Commission time to look it.
M/S SChrier/Siewert (4-0) to waive the fees for a temporary use
permit for the existing antennas if the new application is
sUbmitted for a dipole antenna within the next 30 days.
TIBURON PLANNING COMMISSION MINUTES Of APRIL 26, 1995 Minutes No. 736
7
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April 12, 1995
Dan Catron
Associate Planner
Town of Tiburon
11()1 Tiburon Boulevard
Tiburon, California 94920
RECEIVED
APR 1 2 1995
Re: Assessor's Parcel No, 59-13Hl7
CUP 19310
TOWN OF TI!lUPlQN
PLANNINiA A ~WlkIilIN~ gliPT.
Dellr Mr. Catron:
My wife and I formally withdraw our application to erect a Gap DX-IV
antenna at 223 Diviso Street. As your report to the planning commission
suggests, we could see as soon as the antenna was erected that it was going
to be more visually obtrusive in the neighborhood than we had first thought.
COllsequently, we have gone back to the drawing board.
We ask the commission's approval to try a long wire antenna, which
wilS be erected in the form of an inverted vee. The wire itself is fairly thin
copper, and it should be less visible than the aluminum tubing of the Gap.
It should be less objectionable than the Gap might have been; the only
qu@stion is whether it will work well enough to give us minimal operating
conditions considering the sunspot cycle. We can only answer that question
by putting it up.
EXHIBIT NO. S-
.
~~'~-12-19?5 218:17 ;::~Ji'l i'11S'JRHCJ1-B?JE~i'n
TO
4352438 P. 02
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DaD Catron
April 11, 1995
Page 2
Your suggestion that we erect the antenna and report to the commission
whln it has been up and working for a brief time is certainly acceptable.
We appreciate your patience.
z~
Malcolm A. Misuraca
TJT;;,_ p. D2
.,
.
.
~t\
TOWN OF TIBURON
RECEIVED
DEe 0 5 1994
MEMORANDUM
TOWN OF TIBURON
PLANNING & BUILDING DEPT.
TO:
PLANNING COMMISSION
DATE: DECEMBER 5, 1994
FROM: TOWN ATIORNEY
SUBJECf: HAM RADIO ANTENNA APPLICATION FOR 223 DIVISO
--------------------------------------------------------------------------------------------------------------------------
I have been informed by staff that the Commission would like an update on PRB-l and any
cases interpreting that regulation. Of particular interest is what constitutes "reasonable
communications" as that term is used in PRB-1. Attached is a copy of a memo sent to the
Town Council in October 1992 with th-e operative language from PRB-l and a summary of
all cases up to that date. This memo reviews the three cases involving PRB-l which have
come out since that memo using the same format. .
1. Brower v. Indian River County Code Enforcement Board (Fla. Cir.Ct 1993)
1993 Westlaw 228785 (unpublished decision).
Facts: Brower erected a tower and antenna totalling 95.6 feet in height without
seeking approval from the county. The county's zoning ordinance prohibited anything over
70 feet in height.
Outcome: The appellate court held that the ordinance was facially invalid because
of the absolute height limit.
Si~nificance: This case has little significance for us because it simply restates existing
law of which the Town was already aware.
2. Evans v. Board of County Commissioners (10th Cir. 1993) 994 F.2d 755.
Facts: The same parties were involved in a previous published decision referred to
as #9 in the October 1992 memo to the Council. In the previous litigation, the court
invalidated the county's ordinance because there it contained an absolute height limit, in this
case 35 feet. After the county amended their ordinance, Evans applied again and went
through a full hearing process. The county again denied his request for a tower at least 60
feet in height. In denying the application, the county found that Evans' neighborhood
featured views of the Rockies, which was one of the primary reasons people purchased
there, and that obstructing those views could drive down property values. The county found
that there were other ham operators in the neighborhood who worked on 35 foot antennas.
Prior to making a final decision, the county proposed a 60 crank up antenna as an
alternative but Evans rejected it on the grounds that it would not withstand thc high winds
in the area.
EXHIBIT NO.~_
.
.
Outcome: The court of appeal (reversing the trial court) upheld the county's action.
In doing so the court of appeal made several interesting rulings. First, they held that PRB-
I's requirement to "reasonably accommodate" amateur communications requires more than
simply "balancing" the interests of the neighbors with those of the operator (an approach
taken by the Fourth Circuit Court of Appeals). The obligation to reasonably accommodate
with the minimum practicable regulation clearly weighs in favor of the operator/applicant.
Second, the court reiterated that preserving aesthetic views and maintaining property values
in the community were legitimate zoning considerations of the county. Because those
concerns could not be adequately addressed through screening or the alternatives proposed
by Evans and county staff, denial was the "minimum practicable regulation necessary to
accomplish their goals." Id. at p. 763.
Finally, the court addressed Evans' argument that he needed an antenna over 35 feet in
height to effectively communicate. While not set forth in the opinion, it appears that there
was evidence in the record before the county as to what level of communications Evans
would enjoy at various heights. "Although the County was aware a thirty-five foot tower
would not completely meet Evans' legitimate goals, 'the law cannot be that municipalities
have no power to restrict antennas to heights below that desired by radio licensees.
(Citation omitted)" Id. at p. 762.
Shmificance: This case (a copy is attached) does not create any new law but does
represent a good discussion of the application of PRB-l based on a full administrative
record. The case shows the importance of having a complete record, of examining
alternatives and of focussing on how well the antenna will work. It also is a good statement
of the importance of local zoning interests.
3. Pentel v. City of Mendota Heights (8th Cir. 1994) 13 F.3d 1261.
Facts: Pentel erected a vertical antenna on her roof reaching a height of 56.5 feet
from the ground. Using that antenna for two years, she was unable to establish reliable
communications in the United States and only one international contact. She then decided
to put up a tower which measured 30 feet tall when retracted and 68 feet tall when fully
extended. The tower was to be topped with two directional antennas. (See the opinion at
p. 1262, footnote 1 for the courts discussion of why the proposed antenna would be more
effective.) The city denied her request for this antenna but let her keep her vertical
antenna.
Outcome: The court of appeal overturned the city's decision. In determining the
proper standard of review, the court agreed with the Evans court that "reasonable
accommodation" as used in PRB-l requires more than simply balancing the interests of the
parties. The court also held that "because there is a direct correlation between an amateur's
antenna height and her ability successfully to transmit and reccive radio signals, federal
intcrests are furthered when local regulations do not unduly restrict the erection of amateur
radio antennas." Id. at p. 1263.
.
.
Turning to the specific facts, one basis for the city's denial of the tower antenna was that
Pentel's existing vertical antenna allowed her adequate operation of her station and thus
represented a reasonable accommodation. After stating that "what constitutes 'successful'
amateur communications is difficult to quantify..." (Id. at p. 1265), the court found that
based on the facts in the record, Ms. Pentel could not adequately operate her radio. Also
of note, the court noted that the city could not deny the antenna based on interference with
neighbors' television and radio reception. Id. at p. 1264.
Significance: Again, this case (copy attached) features a good discussion based on
a full record. This is the first case of which I am aware in which a vertical antenna is
discussed as an alternative to a Yagi. While this court found that the vertical was
inadequate in this case, I would emphasize that this is based on the facts developed there
. and is not a universal rule.
These cases do not establish any clear cut rules regarding reasonable accommodation and
it is unlikely that any case ever will given the underlying attempt to reconcile competing
interests. However, it is possible to state (or re-state) several key points:
-the Town must reasonably accommodate amateur radio communications through the
minimum practicable regulations necessary to accomplish our legitimate goals. This does
not mean a simple balancing of the Town's goals and those of the applicant, but rather that
we work towards reasonable accommodation.
-the Commission's decision must be based on a fact specific inquiry.
-our legitimate goals include aesthetics, safety, preservation of property values.
-the Town need not allow the applicant everything they want in terms of operational
ability so long as there is reasonable accommodation.
-the Town must explore all viable options, both in terms of height, location, screening
~~~~~ .
I hope that this information is of help as you review this application. If I can be of further
assistance, please feel free to contact me.
~.~
Robert B. Ewing ?
cc: Planning Staff
Applicant
.
.
TOWN OF TIBURON
MEMORANDUM
TO:
TOWN COUNCIL
DATE:
OCTOBER 19, 1992
FROM: TOWN ATTORNEY
SUBJECT: HAM RADIO ANTENNA APPLICATION
------------------------------------------------------------------------------------------------------------------------
During the public hearing on October 7, 1992, regarding the Burnham application
for a ham radio antenna, references were made to PRB-l (the FCC's ruling) and subsequent
court decisions. Vice-Mayor Friedman requested copies of these decisions. If any other
councilmember would like these coptes, please let me know. I have also prepared this
summary of all cases for those who do not wish to read the actual decisions. My focus is
on what is "reasonable communications" as described by the FCC.
A. FCC Rutin!!: and Re~lations
FCC Ruling PRB-l was issued on September 19, 1985. The American Radio Relay
League had requested a complete preemption of all local ordinances "which preclude or
significantly inhibit effective reliable amateur radio communications." The FCC did not go
that far in its ruling.
The most important part of the ruling is Paragraph 25 which reads as follows:
"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 that others if they are to provide the amateur
operator with the communications that he/she desires to engage in. For
example, an antenna array for international amateur communications will
differ from an antenna used to contact other amateur operators at shorter
distances. We will not, however, specify any particular height limitation below
which a local government may not regulate, nor will we suggest the precise
language that must be contained in local ordinances, such as mechanisms for
special exceptions, variances, or conditional use permits. 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."
1
.
.
This limited preemption was also incorporated into the FCC's regulations at 47 CFR
S97.15(e).
B. Caselaw
While there are cases involving antennas prior to PRB-I, they are of limited
relevance in light of the FCC ruling and I have not researched them. I have also excluded
cases dealing with private CC&R's because those present a separate issue. The following
list represents every decision involving PRB-l which I can find including some which are not
published.
1. Themes v. City of Lakeside Park (6th Cir.1986) 779 F.2d 1187 (also
subsequent unpublished district court ruling)
Facts: Themes sought a permit to erect a 73 foot high tower with two Yagi antennas
on top (one at 65 feet and one at 73 feet) with a radius of 24 feet. At the time of his
application, the city's zoning ordinance prohibited all radio towers. During the course of
the litigation the ordinance was amended to allow antennas of no greater than 50 feet in
height and 8 feet horizontal.
Outcome: Themes' application and the first trial court decision (in city's favor) were
before PRB-I. The court of appeal remanded for trial court to reconsider in light of PRB-I.
On remand, the district court ordered city to allow Themes to erect his proposed antenna.
Significance: This is the case which Mr. Burnham says guarantees a right to a 65 foot
high tower. This is not true. On remand the district court said that it was convinced that
in that case Themes' "interests in engaging in effective national and worldwide amateur
radio communications requires antennas supported at a height of sixty-five (65) feet." This
does not create an across the board rule of law as made clear in subsequent cases.
2. Bodony v. Incorporated Village of Sands Point (ED. New York 1987) 681
F.Supp.1009 . .
Facts: Bodony applied for a building permit and variance for an antenna 86 feet high
when extended which would retract to 23 feet when not in use (no information regarding
horizontal element). The city denied the permits based on a 25 foot height limit in the
ordinance. The city made findings that other ham operators in the city were able to operate
with antennas less than 25 feet. Bodony presented evidence that 60 to 70 feet was necessary
for "good" reception even under ideal atmospheric conditions.
Outcome: The court invalidated the city's ordinance because its maximum height
limit was preempted by PRB-1. The court also said that the city's decision was invalid
because it failed to make a "reasonable accommodation" between thc two sides.
2
..
.
Significance: The
neighbors, aesthetics, etc.
record.
court said that the city made no findings about impacts on
Thus, whatever we do must be based on a strong evidentiary
3. Bulchis v. City of Edmonds (W.D.Washington 1987) 671 F.Supp.1270
Facts: Bulchis applied for and was denied a use permit to erect an antenna which
would be 70 feet when fully extended and 21.5 feet when retracted. The City's zoning
ordinance required a use permit for any antenna over 25 feet in height.
Outcome: The court held that the use permit requirement on its face was legal but
it had been applied improperly. The matter was sent back to the City Council to review
again.
Significance: The City had found that the tower would be an "aesthetic blight" and
that Bulchis had not shown a "public necessity" for a 70 foot antenna. The court's ruling is
vague, but it appears the city should have looked at more alternatives and justifications for
a 70 foot height. Also, the applicant did not need to show that his antenna would be a
"public necessity."
4. Howard v. Burlingame (N.D. Ca1.1988) 1988 Westlaw 16907 (unpublished
decision); 726 F.Supp.770 (1989); and 937 F.2d 1376 (9th Cir.1991)
Facts: Howard applied for and was denied a use permit for an antenna which was
51 feet high when fully extended and 21 feet high when retracted with a horizontal element
24 feet long. Howard had an existing 23 foot antenna which by his testimony allowed some
long distance communication but operated at only 2-10% capability of the applied for
antenna.
Outcome: The district court held that the city council did not attempt to reasonably
accommodate the federal interests protected by PRB-l and sent the matter back to the city
which then approved the 51 foot antenna. The published district court opinion and court
of appeals decision deal primarily with attorneys fees.
Shmificance: The district court said that the city failed to look at various compromise
alternatives such as limits on hours of use, screening or a lower height than 51 feet. In
footnotes, the court said that the city might need to obtain expert advice on how reasonable
some of its alternatives were. The court of appeal noted that some or all of those costs
could be imposed on applicants as in other land use applications. We have used this to
defend Mr. Burnham's contention that he should not pay for story poles or even the use
permit. We did pay for our consultant, Norm Wilson, because at that time Burnham. and
Don Batten on his behalf, had presented technical evidence which we could not rebut
without help.
3
.
.
5. Williams v. City of Columbia (D. South Carolina 1989) 707 F.Supp.207 and
906 F.2d 949
Facts: Williams applied for and was denied a variance for an antenna which was 55-
65 feet high when fully extended and 23 feet when retracted.
Outcome: The trial court found that neither Williams nor the city had considered
PRB-l during the application and thus remanded the case to the city for rehearing. The city
reconsidered the application and again denied it in light of PRB-l. The district court and
court of appeals upheld this denial.
Significance: This is the only case since PRB-l upholding a city's denial of a variance
or use permit for an antenna. The court of appeal found that the city had made efforts at
compromise through various conditions (such as nighttime use only) but that Williams had
refused all compromises. PRB-l requires compromise on both sides. In our case Mr.
Burnham has agreed to various mitigations and compromises so Williams may be of limited
value.
6. People v. Krimko (1989) 548 N.Y. Supp.2d 615
Facts: Krimko installed a ham antenna, without permits, which was taller than
allowed by the zoning ordinance. He was criminally prosecuted for this violation.
Outcome: Krimko moved to dismiss the complaint alleging that the zoning ordinance
was facially invalid in the face of PRB-l. The court rejected his argument.
Significance: None to our case.
7. City of Novato v. Norman (Marin Superior Court 1989; Court of Appeal,
1990)
Facts: Norman applied for and was granted a use permit for a 50 foot high antenna
(no specification was made as ato the horizontal elements) In spite of the approval,
Norman then went ahead and put up a 79 foot high tower with three horizontal elements
64 feet long. In addition, he mounted four 30 foot long horizontal elements somewhat
below the top in a different location than appraoved. The city then held new hearings and
somewhat modified the original conditions of approval. When Norman failed to comply
with the new conditions, the city went to court for a nuisance abatement.
Outcome: At trial, the judge first ordered both sides to go back for another council
hearing. Norman was told to submit information on waht he needed for "reasonable
communications" for consideration by the Council. Norman submitted a plan which the
Council found was worse than his existing illegal use. The Council then determined that
reasonable worldwise communications could be accomplished with a 40 foot high mast and
4
.
.
horizointal elements not exceeding 35 feet in length. Both the Superior Court and Court
of Appeal found that the Council's action complied with PRB-I.
Significance: The main significance is that this is a local case. The case also shows
that the Town can put the burden on applicants to show what is necessary for "reasonable"
reception.
8. MacMillan v. City of Rocky River (N.D. Ohio 1990) 748 F. Supp. 1241
Facts: MacMillan applied for a building permit to erect a thirty foot high radio
antenna. His application was denied because it exceeded the maximum height and because
it would "result in a substantial impairment of neighboring real estate values..." according
to the city.
Outcome: The court found tnat the city had not adequately considered PRB-1 or
MacMillan's need for "adequate" communications. The case was sent back to the city to
reconsider.
Significance: The court said that the zoning administrator let "concerns over property
values and neighbors' protests" predominate the decision without concern for PRB-l's
federal interests of reasonable communications.
9. Evans v. Board of County Commissioners (D. Colorado 1990) 752 F.Supp. 973
Facts: Evans applied for and was denied a permit (and variance) to erect a 125 foot
high antenna. That denial was litigated and the county won. Evans then applied for a 60-
100 foot high antenna which did not require a variance. This application was also denied.
Outcome: The court found that the county's zoning ordinance established a
maximum height of 35 feet with no allowance for going above that height which was facially
invalid in light of PRB-I.
Si2:nificance: None to our case because our ordinance is different than the one in
this case.
10. Goldberg v. Charter Township of West Bloomfield (6th Cir.1990) 922 F.2d
841 (unpublished Disposition, text in Westlaw)
Facts: Goldberg was denied a building permit for his antenna because he had failed
to apply for a necessary zoning variance. The variance was required not for height, but
because he wanted to erect the antenna on a vacant lot.
Outcome: The court held that the Town's ordinance was valid on its face and that
5
I -
.
.
because he had failed to apply for a variance, his as applied challenge was premature.
Significance: This case shows that applicants must go through the entire zoning
process even where PRB-l is an issue. Mr. Burnham has threatened at various times to go
to court because the Town is being unreasonable. This case (although it cannot be cited as
precedent) shows he cannot do that.
C. Conclusions
. I draw the following conclusions from these cases:
· While in theory a city can deny a ham operator any antenna this is likely to
be upheld only if the applicant refuses to cooperate or compromise. The
attitude of the courts seems to be that there is always some reasonable
accommodation which can be reached and you should keep trying until you
find it. 4
· The courts recognize the importance of local zoning concerns including
aesthetics, but also require compromise with the communications aspects.
· Our ordinance is facially valid and thus could only be challenged on an as-
applied basis.
· Because the FCC refuses to set nurnmum standards, instead of using a
reasonable standard, the courts will look at each case on its individual facts.
None of these cases establish any standards as to what is reasonable.
· While Burnham's license issued by the FCC authorizes worldwide communica-
tions, it does not appear that we need to grant unfettered worldwide
communications 24 hours a day, 365 days per year.
· The question of a smaller antenna or shorter tower or mast is a difficult one
to resolve. Our independent consultant has said that a smaller antenna wiII
not give reasonable communications to Mr. Burnham. We may need to speak
to someone else on this but we already have something of a record on this.
Robert 13. Ewing
leak
6
j' .
~:V,\NS v. BO,\IW OF COllNTY COM'RS
t:1l~iI~994 r.2d 7!1!'i (I0lhUr. 19931
)"
to facilitale hi:- ohservation:-. then :-t1ch HC'-
tiom; mig-ht <'On:-;titutp. a sf'an'h. S(',' .I1t'i:mw
v. Ilieh. 4Xfl II.S. :l~1. :l~~. 1fl7 S.('I, 1 H!l,
llr,I),!Jt1 L.Ed.:::d :1'i711!IS7) ("A truly ('lIrsor,Y
in~p,'dilln--otl(' Owl irl\'lllvC's ITu'r.,I.v 1"llkillj.(
nt what io.; all'f':ul,v l'XIUIl'lf'd 10 vll'w, will/fw'
d;,'llurllillf' if "i.'l 1I0t. II 'Hf':lI'l'h' rill" Fuul'lh
^uu'nrlllll'lIt 'llll'IUI~l'~," (1';IIlI,lla~i~ mill. 'II I),
In I.his in:o:lal1(,f', AJ{pnt I'l'lla ollsl'1"\11'1I Hnly
what was in pl:dn vif'w,
CI":lwlin,l{ undr:r the vehicle difl not !-\ignifi-
cantly add to the intrm:ivenf'f's of thp routine
Chpc!{pflint stop_ Aj.!<,nt rena's cr)THhlct \\'llf'
no mfll"t' inl,rll~ivp than if hf' had qucstionNi
the App('lIc('s concf'rning the :-;uspiriolls cir-
curnstan('ps. The insPN'tion of till' vphicl("s
under,.arriag(' ]ast('{1 It'ss than two minl1te~
;:md did not invo]\'(" moJ'{' inll'u:;ivr', tin1l'-
('on~t1mil1l! ml':l~lIn'S ~Ilrh as pullin~! t11(' ('lIr
nn a Iif't. III ohtain a lu,uf'!' \'il'w,
Thf~ Appdlc'l's tlI'J.!"f' that !ll(' 11:-;(' ur 11 na:-;h-
light and mirror to inspect the undercarriage
constituted a search. We rlisagree. "[Tlhe
use of artifirial m~ans to illuminate a dark-
cnf'r] area :-;imply clops not cnm:titutc a
sf'arrh, and thus triggers no Fourth Amencl-
mpnt pl'otl'C'tiOIl." llJ'flwn, .1lill ".s, at. 7,tn,
1/1:1 S.f ~L HI, Jri12. Cflll,"(pqnl'nt.ly, Agt'nt
I'l'lla\ 11:-;(' or a nashliJ.!ht did tlot. transform
his oh:-l'rv:lt.ion~ into an lInrC':lSlIllahlf' span'li
within tilt' 1Hf':tlliTll( of Uu' FOllrth Anll'lHl-
ment. Ulld,.cl Slrfl/::'! I'. [hum, 4HO U.S. 2~11,
30,.. 107 S.Ct. 1134. 1141, !14 L.Ed.2d 326
(1!)R7); Unmm, 4fiO U.S. at 7:m-<IO, lOa S.Ct.
at 1M2, Likc\\;sc. we find Ag-ent Pena'1' use
of a min'or to rcn0ct and direct the llash-
liJ.!"ht's !H':un did not. hy itself, constitute a
!':careh as the min'''r wm, simpl~' used as an
artifirial mf'HnS of optiral l'nh:IIH'('lllcnt.
Our holding- that Ag-I'nt. rl'n:l'S inspc'c,tioll
of thf' vehicle's 11lH!i'rrarri;q.!f' did not ('llnsti.
tuf,' a ~/':lI'f'h i~ ('lJnSi~'f'nt with llllifrd ......'flll,'.'l
r'. !','in', W;!I F,:!d ,~Ol (!ilh Cit'_l~l~!ll. In
Pril'f" hurdr'l' p:drlll :lj.!t'nts noticcd hul'll
m:lrk~ :tnrl han' :-;tl'pl at till' ('o!'nf'rs of a
tnld\ h('d in a \'phil']p "ptaill/'lI at sN'OTulary
;n~pf'l'!inlt, !d. al .-.;0:1. Thf' :l~~/'Tlts 10nl((,1I
lIndl.r Ihl' v"hid" :Ind oh~"I'\-'I'd wlllll HI'-
1'1':11"1'11 III Ill' :I qflra~~" l'nrnpal'tIlH'IlI, All
:WI'11l fltt'n ITawll'd IIl1d,'1' tIll' \'{'hit,II', III I.!
wil h tIll' :lid 1'1' :l l111...ldi,[llt, 111l11wr] illlll :1
~m:lllIHI].' in till' ('nmll:lrllrwlll :lllclllllsl'n'l'tl
~
wrapping tap~, A ~Ilhs('qtl('nt f'('arch nf the
C'ompnrtlllPnt nnf'ovl'rf'c1 Imndi<'~ of clll'ninr
1\"'''I'I,,'d in tllp". Th~ Fifth (,i,'rlllt f"IlI'~
the' :lg't'nt's ohst',"yal iOII!" unde!" thp tnlC'k
\\'('I"P P:l1" nf n valid \'iS1WI ln~p('d.lfln Rnd
1//11'(' Illl' 'lillf!l'11 l'IIIlIJI:ll'llllf'lll Wll~ (11~(,fl\'1'1"
I,d. lIu' :IJ~I'I1I~ luullll'uhllhl.. "llll~l' III fOl'nrt'li
iI. /d, III Hlil.
III SIl"IIlJ:lI'~", lhl' AJlpl'lIt,f'~ W('I'(' nflt ,I(,~
t.air]{'d :It t ht' sf'l'ollllnr.v il1~J>(,l:lilln IIrr>R ill
violation of theil' (o'olllih AlllPndml'llt right:-l
but in~tearl were hl\\full.v refC'rred tn ~l'rond.
ary during the conr!':{' of rt roul illC' ('hf'ckpnint
stop, .. Furthermore>, Agent Pena'R examina-
tion flf the v['hil'lr's unt!<'I'C':lITiag'e did not
('nn~tit,ut(' a !-:l'l'll'l'h ami thus did not vinlah~
tht' Appdlef's' F011l'th Al1lcndn\('nt ,"ight.".
Hincf' tlll'll' is no nhjrdioll to pithl'l" thp
runinp inslH'rtion or thp St'l\1'rh or tlu' hidtll'll
('omp:u'tlll(,I'II, W(I fill not nddn'ss lht'sc i:'l.
!'UP!-l,
We REVEI1SE the di,trirt court and RE-
MAND for further proceedings consi::tl'nt
with thi:- opinion.
.
o lHY"lIli'l"I"Si'SHM
D.R. EVANS. Plaintiff-AppellEe.
V.
nOAIW OF COUNTY CO~DIISSIOI'iERS
OF TilE COUNTY OF BOULDER,
COLORADO; r.ary (;cHlrll'II, in his ca.
pacity as Chil'f BuildinJ{ Ofrkinl, Dl'frn.
danis-Appellants.
No. ~2-1021.
(Jnitf'd ~tllt('," Court of Appt'lIls,
Tf'nth ('ireuil.
M ay ~.~, 1 !)!)~.
AIrI:ttl'llt' limn radio 1I111'l'alol' l'Imlll'IWt'd
l'llUlll,\' hn:u-d nf t'nlllllli."s;IIIlf'r~' dl'l1i:t1l1f "(Pl"
('i1l111~:f' IlI'I'llll1 fHr :1Il1,'1I1l11 IIIW"I', Till"' 1'lIil.
I'll ,<';t:ll.,~ Ili,,1,.id ('11111"1 (,,,, 1111' I)i~lrit'\ flf
('Idllr:nln, :--;111'1'111:111 (;, hl1l'sih'l'I", ('hid
7!'i!'i
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t
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.
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991 FIWEJL\L UEI'OltTEU, td SEIUES
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f:I!'iS,,~U
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h,,',f~';
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i:fb'
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75(;
~ { ~
-:,
~
,,,
.hlllgl', ~T;llllc'd ~Ullllllar'y judg-IIIl'lll 1'111' IIl1t'r.
.\tol'. Huard appt'ail'd, Till' Cuurt or Ap-
Jll'"b, Urnrlly, Cin'uil ,JUdg-I', IH'ld lhill dl'l'i-
~iull limiting' Ill'ig:ht uf OI'l.'n.ltUI"~ allh'ullu
tuWl'1' to :If) fl.'l't WiI:-i Hut I'n't~lllpll-d liy Ft'll-
el'ul COllllllUllil.'alilllLS CUlIlIlIis:-iiulI (FCC) ur-
d~l'.
Hcvcr.seu.
~:!, ,'.
,'.l'
J. ZuninK and PlanninK <?I-'
lllllh!1' Ft'tlt'l'al COllllllllllil'alhllls COIIl-
missioll <F('(') 'rcg-ulatiulls tWltt'ming .1Iua-
tl'ur ham radiu Upl~l'atUl's, zolling authuritit's
IlIUSt I'l'i.\sunahly ul'l'omnlo<latc amatcur l.'H111-
IlUlllkations, )o{'all'l'gulatiolls should b{~ mini-
IIIUlIl pr;ll'lkallll' in Ul'dl'f' to ;U'{'olllplish ZUlI-
ing- aUllull"ity's ll>g-itilllall~ pUl'pOSt'S, ltK'al au-
thOl'itic:-i m~IY nol altogether preclude ama-
teur tUlllmuni{'utiullS anti rJ(~c has explil'itly
c1l'tlillt'd to I'Ch'1llatl' spel'ifit pt'nllissiule
Ill'il-!-'hts 1'01' illllt.>lIl1i1 tll\\'I'l"S.
1;-"
..7..,::....
,i'.
{j.:";./j
;h::~?~
':~',-;::,~.
. - ~'.'_:"
-~;:.'>
.~:~:,:;',~~:-
j~:~:~(r'
i;'~~:,;
":; ~-;;:' ~;, \~
~;. " .
:,p.."'-,
~ :,:~ic;,'~ j ,~_'
':~," - ,
f::.;.~'::~'
~~N;.I,
'-S(~~,!,.,:~;
:.J., Fl'tlt'rlll ('uurts o-.:-'77li
(:uurt lIt' AI1Ilt'<.ds I't'vicws tli:-ilJ'it:ll'oul'l's
j.:Tillll uf :-illllllllill'Y .illd~lllt'llt tit' 1111\11,
3. Fl'tll'n.tl <. 'uurt:; c=->77ti
CUlII't uf Appc,ds g-iVI'S 1111 dckl'CJll'C ttl
distril't ('utirt's prl'cmption dctl'rOliu~ltiun and
examines issue as if it was silting a~ trial
court in lil'Sl iHslafll:e,
4. Slall's C::=:>IS.:J
Pl't'l'lnptloll ilIa)' tltTllr ill allY nm' of ..It
Icast fuul' si!u<.tlillll:-i: (Ill'~pn'ss JU'I.'CllLplioll,
whkh I'l':;uib Whl'll Congn':-is expresses 1.leal'
intent tu Jln~l'llIpl ;-;lalt, lim; (~) illlJllicd Jln'.
t'lllpliulI. which 1'l':'>lllb wilt'lI ;-;(01((' law :-itilwb
UI'; ohstud" lo ill't'llllLpli:-illllll'lll ;.tud eXl'l'utiull
of full (lurpus<':-i and nbjL'l'livcs of Congress;
(al cuntlid !In'cllljltiull, whit'h results frulIl
al'lUitll'unl1id itdwl'en ft'deral illlll st'-ltL' law
t'\'L'lI (lLuugh ('ungrl'~s is :-iill,t1(; alld (.1) field
pl't'I'lllpliull, whit'll n':-.ult;-; frum dl'll'l'I11ill;l-
lioll lli;tl ('ullr,rl':'>s illklldt'd III J't'llIU\I' Vlltll'L'
KIIII.!,"'1 fnllll ...;Iillt' rt'i-.',llbllll)' ilutlllll'1lY,
tl.~.(',.-\. l'\lIl,"1. '\1'1. Ii, d. ~,
;). Slall':-i ~IS.~t
J'I't'l'lllpliull 111,1)'
t'll IIY rcclcl';d dgt'lIl')'
Ils l'UJlgn':-.SI11Ildll,\
U,S.C.A. l\lllsL. Art.
I't';-.llll 1'1'1I111 ;Idhlll t;d\
adlllg \\'lllllJl :-'{'lJpt' ()f
ddt'J..:aLl'd ;lutlilJ!"lly.
Ii, d.:!.
6. Z(lllill~ untl Plunnill~ <?ll
Ht't'all:">l' "'I'IIPl'lIl (:Olllflllllllt'al illll:-l (~Olll'
mis:">ioll (FC'{:) l!xplicit.ly dedlllt'd lo n'g'ulate
heig-hl of I'mliu ant{'llllil t1JWl~rS, :-iu('!l re~:IlI;I.
tillll rests with lontl zoning- authorilies 11I'0-
vided they reasonably ac{'ommodate amateur
cornmunkations y,;th minimum pra(:tieahlt~
..egul~\tion nec{'~sary to ac('omf,li:-ih th(~ir pur.
poses,
7, Zuning and ('Ianning ~l)lI~
In rt'\'iewillg: local land u:->e l'eg-ulatiulIS
uf alllatelu' nulio antenna luwers, revil'\\-'ill~
court should apply two-part allaly~is, lil'st,
CllUl't ShlJuhl cxumille a'JIJlil'ul,le reh'1JI'-lliun:;
tll dl:lerllline if thcy uJ't~ fiH'ially euusisLent
with Federal CUlIlllluuieatiulls CUllIWissioll
(FCC) regulatiull amI sel.:onu, rcviey.;ng
court should examine decision of local board
to determine if local bIJard's apl'lieatiun of
1'l').:'lIlations is IH't'emllted IIY F(:(: l't'J.(ulalioll.
11.:--1,( ',f', ('011:-;1. Art. ii, 1'1, ~.
H, Adlllinistruti\'c I.aw and Prm:cdurc
<>.l!lti
Fcdl'rall'UUl'l:-i should givl.' pn~dusive d-
fcrL lu rad-filldin~ of state 01' lu('al Utllllillis.
lrativc triLunals.
9. Zoning aOlI Plallnil1~ <>7Ur;
III .H,tiun l'halllm~,,';ng" denial uf special
U...;I' /l1'm1lL for anlt~llIl.\ towel', Ui:-;ll'il'L
Cuurt's I't'jl'dioll of Cuullty Huard of Com-
missitllll~rS' factu<lJ 1'1){l{'!usion w<.\s improper,
HI. ZuninK and I'laHnillK (::;lIt
CuulIly BoaI'd uf CUllllllissiuIll.'I:S Illildl.'
etTul'b to n~asul1ably .lcl.'lJlI\mudate ham radio
Iljll.'ratul"s arnall'lIr tOlrllllunil'atiuns utilizing
rnillilllUllI IJl'ildil:<lbll' n'g'ul;ltiIJlI and, tbus,
111"'1'11'... dl'l'i:-.illll lilllitillg- 1lt'I!-:hllJf u[JI'l'alur':-.
;Ulll'llll<l Ill\\t'l' tll :;tj fn'l \\;1.., IIl!1 Iln'I'lllpll'd
II,\' 1,'I.,lt-ral ('IlI11IIl11llh';dillll:-' ('1l1l111L1,","1ll1l':-;
(i-'( '( 'J n'!-:lJ!;{[lllll; l!1'lll;1! or 1"'rIllll. f()r 101111'1'
tll\\l'r ,lnt,1' l'\'alll:LlIllll uf llpUlIll:, :uld ('!t'ai'
l'llll:,jdl'riltlllll (If t'1,11'\dld t'\idl'II1'I' \\;\:' "1'1,,\.
:'>lJlldl,ll' ;(l'{'()lllllllllbtJIIIl," 11L1~lId\ Iq..:ltllll,lt1'
IIUl'J'IL...C::. \\'I~n' tu I,n.:-t'nl' ;ll.....llll.tll. \II'W:-,
alld 1I1;tllll;llll pl'lIpl'J't)' \ ;dw'...; ;IlHI IlI!.trd tko-
ll.'rullIH'd that jJfUPIN'd .dkrll:ltl\l':-; \\lIldd
I
I.
I
EVANS v. BOA,m Of' COlINTY ('O~I'IIS
Cllt H~ <f94 I'.ld 7~!' (111_" Ur. 19"1.\1
{T.Re.A. (:nnsL Art. nff/'l'H I thi~ ('a~f'. ,. Fil':-;l {If HII. Ilnlllflc'r
('ounty III gNIf'l'ill i~ :10 llnll~11:11 ('nllnh'
he('au~l' it has an unusual palln;'nmic
mountain \;('\1,". And II lot of I hl' r)('opl('
who IiVl' in IlOllldfll' :m' very ('oll{,l'l'n"d
with thp vip\\" fWllplp that Ih'e nn th~'
:::.Iol'f' /If Davidsnn !\1t'sa looldllj.! to tllp \\'('~t
have :1 \'icw whieh is prohnhly Ollf' (If tlu'
W'l'atpst vi{'ws on tlw pastern slop(~ ..
people. huy in that aI'PH 11('('l\USe of the
view. This is nne of thc' important consid.
erations of li,..ing- ill that <tt"('a ... where
people bu:-.' lots f01' thf' vipw in such an
area as this npighhrll"hond. df'vnlu:1tinn flf
"propl'rty mllY Ot'{'1IJ' wilt",p tIll' vie'\!" ill'lull!.
Iy is :Ifrl'f'lf'tl.
III Of'dp!" 'n IlrI'S('I'\'f' Ihl' \'il'\\'N t'1\;nYI'd hy
I"I'sidl'lltS, lIu' ('1I111l1,\' illll'll<"(P~ II gol'lil'l'lIl
hl'i~~hl lilllil:llillll IIf flliI'I.\' !in' li''''I 1'III'slnH'-
1111"'.'1, Till' IIl'i~rht Iillli1:.llpll P"I'I,lul1l''' I.~\'
ltll~ 1'1'11111 1'/l/lll1l1'lill.1{ Ihl' ":lfli/l 1'II11l11l111lit':I.
litlns Ill' dl'sin's, I':\":IIIS, a highly '1u:llilit,tl
ham rmlio IlpPl':llnr, SI'ph l/l ('lIlnluel allla.
h'tn' ";Hlill l'"s.C'ardl, pl'fI\'idl' C'I111'I',l!f'llI',r l'OIll-
mllnil'aflnns.. and I'I1J..!'a~f' in illl('J'('lllllirlt'lIlal
{'(Jnlll1\lIlil'aliHI1~ ill (1I'1It'I' In ftl~tt'I' intf'I'I1:I'
t.inn;1i ,l!lJnd will. Thl' radio l'xpC'rls agTl'{'d
th..t limiting E\';lIIs In ;l lhirly.lin' fnul ;111.
1('llI1a IIl\\'l'I' W/luld sij!llilit';lnlly impair J.;\,.
:IllS' ahilily 10 at'I'llIllJlIi:.;h hi... If'/...;Iilllalr' plll'-
pIISf'S. Allh/lllgh 11ll' ("flllll,\' ('/llH'I'llt'll Ihi..:
poinl, it, ('nnll'lId~'d ullll'l' :lm:lll'llI'S ill 1lH'
:U'C':\ ....u{'{'('ssfully ('ondnct SOIlH' ('ommllni(';]-
tion~ with thirty-fi\'e foot untcnll:ls. Add i-
tionall~'. nrighhorhooc! rl'~idl'nts flt'{'s('nt('d a
~tl'ong intr-t.('sf. in Ol<lintaining- the ~t:ltll~ qlln.
TIIl'Y f'XIII'PSSflll ('lll]('l'I'n lllat 111l' ('I'f'rtillll Iff
a lar~~t' Ill"lal :lI1II'TlIJ:l 10\\'1'1' would 11111 I'llly
itlll'rfl'I'I' witl. lIlt, ~llfH.1'I1 :lI,,,!IH'lk \'il'\\"
111,..'1 1'lIjH.\'I'r/. hut wtl1lld :d"o dl'\':d1l:11C' Ihl'i,'
tll'of"'l'ly. r-:\'all~ Iwlin'l'd hi' ~'lllild :dll'l'i:lll'
Ifll' prHhll'ln II.\, ':1""'l'llil1l', Illl' 111\\'1'" \l'llh
I"('I's. Ih'"pill' !-:\';ltl:';' l'llllll11ilnll'rd III pl:ln!
~Ofl 11'1'1'" 1111 hi:.; fWlqu'1'ly. Ill!' In'l"": \ln1l1t!
not hi' of .":llflil'j{'!ll lH'il'l1t to :,,{'I"'1'11 thl'
prnpllc;t'd tmH'!" I'll/' ;ll Il':I"t ll'n .\'l':ll":".
/
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Ip
not nllt'viat.e l)f'ohlt~m,
fl, d, 2.
St.'C pllhlicaHon Words and Phrases
for olher judicial constrllctio"" and dl'r-
initiOlI....
:1'
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11. Zonin~ nnd Planl1in~ ~fio6
In r1ptcI'miningo whpther county, utilize'd
minimum practicable I"c~rulation in arlclrp:;;~-
ing- ham radio operator':;; proposal for anten-
na towel', reviewing- court ~hollld examine
whether county explored alternativcs to blan.
kel denial of application,
r.
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I,
Robel't E. YOlllp ;lnn Rrian (~. ElIl'rl!"' of
Williams, YHull' &. I(ol'ni~~, P,C., Ih'nvl'I',
CO, fot. plainliff.apfll'lIl'('.
H, 1.l\\\'I'I'tII'C' lIoyt, HlIllldl'l' COll1lly AUy,.
lUll I Mad..finf' ,J. MW'lflll, "1'I1111.Y ('ollllly
AlJy.. HI/nldl'l', CO, r,w dl'fPIHll1lll.'l-llflfll'l.
1:U1t~.
IJ~
111
111
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'II.
1I,'fl1r" TACHA and IlllOltIlY. Cir('uit
_Jud,gf'~, and HHOWN.... District ,'Illlgt'.
"('
HIWIWY, Cir('uil .1l1d~('.
,f.
Thi.... lIppral spring:;; ft'om a cnl1tl'o\'cr~,\'
1J(,tween an amateur radio operator. Ill{.
f-;\,:lns, ani I t.hp HI/uldl'r Connt..v Bwml of
(;flmrnl~simH'rs ((;Ilunty Ill' litllll'.I) (.tJJlt'I'I'I1-
in,l( thl' IlI'ighl. of an ;mtpnn:l low!'!' in a
resid('ntial neil.!hborhoocl. Evans c11'~it'NJ a
tower 100 feet hig-h; thc County decided
thirty-five feet was ~lIrtici('nt; ar.d the di~.
tricl court (h'cirlr'r~ eighty fef't wa~ just Tight.
W('P ,"'vl'rsl'.
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Ev:ms owns ;1 11111111' Ilu':II,,(1 Ilflllll H I.~,'"
HlTl' II'ad, ill II 1'.1111"11 1'l'~lilll'lll i:11 an':!. '1'111'
al'I':I'~ principal aUr;H'tion is a view of till'
nf';Irh.... IVlt'k.v Mountains. Till' dislT'it.t cOllrt
jlldgf' who initially hc'ard thp (';{Sf' aptly de-
scrilwd thp r('sid{~ntial nl'ighhllrhnnd a" fol.
]QWH:
ITh/'rr an'l somp Vl'1'.\, spf'cifi(' intt'J'l'sts
of Tlollllll'r (:Ollnr,V in genf'ral anrllhi.': [lal'-
[iclll:rr 'll'i~~hh()rhollll in-sp4'('ifirally \,hil'h
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()i~rr Id (tHll! JIIJ~~l' Inl (hL' Diqr III 01 K.ll1..a....
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Ila('I\~T(Jtllld
This di"JlIIII' orwin:ltl'd III l~ISi \\'llI'n E\'-
:lI\S :qll'lIl.d 10 Ihllrld{'r ('lI11llt.\. fill' :l hlJildirw
~i!tilli! h\' <k..ij'n:llrllll
L
.
.
75K
UU,I F1WEltAL IlEI'OItTI':lt, 2<1 Simms
III I'l'Spollse to the distrid court unit'!' the
(:Ultllly ;.llluptt.d ;UIll'lIdllll'lIts which atTlrllla-
lively I'l'uvidcd the BlJ<lnlluay appro"t: 0111101-
teU'I' I'luhu tHINerS exccedinj!; the :standard
ht'il-',ht Iimitalium;, 011 AUJ;usl, :!.t, l~J~H. the
Cuunty I'ccun:::;idcl'cd Evan:;' i.lllplkaliull ami
once a~aiTl held. a I'ubhl.' hearing:. At tbal
hearing; and throughout the t:uur:-;c ul' this
di:;putc, the County heard tc::\timony frum a
wl(\e variety of sources including expert::. un
ham radio, land use zoniiig, and real estate
vahtl's, as well ,1:; nci~hhul'ho()cl fl'sillcnts and
membl'r:-:. ill' the public.
, ~ I ~-
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tr- ..:
l'l'l'lIIillO l'n'l't a \~f) fuul lllWt'r. Tilt: huilll~
in~ pel'llIit alld subsl'IIUt'nl applit'atioll fill' a
vUl'iutlce Wl'rc denil~(l. The liistri('t court dc-
tA..rmilu.tl tht' Cuunty\i CHllsillcrutillll uf Ev-
am: llilplicatioll conformeu with the FCC's
l"c~\\latiolls in "PltH-l",' Evaus v, Hourd of
CUHulH ClJtl/m',.~, No, M7-z.-1&~r), We uf-
lirmecl the district court decision, evnwi v.
HuC/rd of ('olOllu CU1WIl'T:$, No. 88-~22:~ (lOth
Cil', Mar. 12, 1~jUU) (unpublished order anu
jUtIj.!;llwnll. In l!'S~. Houhil'r County
atlIlPh't1 a Sl.t (II' aI1H'l\thHt~lIls whirh in part
csu.lhlishl~d l.I lilllited impact special use ('e-
vil'''\' I'I'ul'eS:-i fur l'oll:-iidl~l'atioll of propusals III
crl'l't anmteur radiu tuwel'S, E\'ans suhsc.
quently flll'tl an application with the County
I'UI' a :->pedal use permit, 'i'hc application
spcl'itil't1 full!' llilTel'Cllt tuwl'r cOllfi~u('aliuIlS
and proposed the County :clect the most
suitall!L> uptiun, E;'\I:h conlih"\.ll'ation in....olved
u llitTen'lI1 lOWI'\' hl'i~ht l'illlgilll!. from sixty
tu IUtl fed, TWII of tilt' l'ullfil!,lll'illioll:'> (lirl'd.
Iy lillhl:tlllw pl'l'll,i:-.:-.ibit' luWt'r IlI'ij:.ht tu till:
ht'i~ht of the \n'I'S lllanh'd tu :-.l'J't'I'1l till'
luwel',
:i~; : ,
Aftl'!' l.l pull\i~' hl'arillj.!; 1111 MOlY :a, 1\1\111, thl'
L'ollllt,Y t1etl'rmilll't1 thc I'l'opll~al:; hlckctl :llle-
Iluatc :il'recnill~ of th~ towl'1' ;.Inti failcJ tll
mcet the tritt'ria for SlWl"i<.1l use approvaL
EvuJls l.:hH\kll~L'llllle CUUllty':'> dl'lIial 011 fcd-
l'I'i.\IIIl'I'I'llllltlllll ~l't\ulHl~, '1'111: ltislrirl l'tllll't
in u I'llhli:-.lll'd "pillion, 1':/'111/:1 I', J;ulwl r1'
(,'wully ('0111/11',.:1, 7rl~ F,SupP, ~(,:~ (l),('lIln,
'~I~lll). Iwhl t.he :-'\It'dalll:-ie l'c\'iL'\\' 1'l'g"ulatinlL~
Wl'l't~ illlil~l'tl pl'l'Clllplcll by I'Ii.B-1. limier
the hlllg\la~e uf the (~tlllllty'S 1't~ll.llbtiOIl:-i
whclI read ;I:-i a whulv, thl' district l'ourt hell I
a spt'l'ial permit cuuld he g-l'alLtl'll unly if it
cUllIplied with the thirty-f\\'e fOllt lwig-ht re-
quirelllt'lIt. The cuurt found that :-'iuch an
ausolute pruhitnlillll un antennas greater
thall a certain hl'lgltt was invalitl un its face
it:-i It Ctllltl'a\'i'llt::-> lh.' pllrpll:'oe bdLilld the
ft'llt'ral )!,II\"I'\'lllll1'lJI 1I'~ublilllL."" ld. at ~177.
Al'l'lll'tluq.:,ly, till' l'llUl'l ~ra\ltL'd \-:\'''11:-'.' Illullull
rIll' :-'llIlllllary .Ill1If~llll'l\t <lllll IllI"I'I'11'11 tIlt'
....lltlllty lu l'I'Plll:--llh'1' l':\"illl:-" applir'lL1oll
Wllhlll siX Il\ullllL,..
ji~ '
, dl,l ~"',
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l. (Ill ~"I1l< lub,', I'!, I'J.'\'). lb" I'll 1','>11,,1 "
HllLl!!; d".lll'~ \\llll ,,,Illlld'" I" 1\\\'11 1.,,\1.. "1,,'1
;.ihll'> ,Illd I.",tl '''11111 I! 1.,\\ I Ill'> lllllll!-'- In.lV I"
lUll lid 111,\1,:".,,- "I h'.I..,ull'".1I1J!lllJll "I ,'il,a,' ,II
1\1
Thc Board llcdsiun
The Cuunty I'cjl~ctdl the special use permit
in <.1 written urdcr. 'I'hc pertinent pUltiuns lIf
thb order stated:
I B lased on the evidcnce presenteu .,' the
Hoard fiuds that lhl~ lapplicaliunl doe~ not
1I1l'I'l1lw crilt:l'ia I'UI' lilllill:tl il1lpad :-,pl'l'ial
U:->l' apprllval as :-id forth .,' rul' lhe I't~a-
t-lllll:-> that lhe pl'upwwll tll\\lt'l' will nul bt~
l:uh'qualdy ~1'I'I't~lU~d, HUt! will IIllt hc ill
hill'lIlllny wilh thl~ rharader of the nei~h-
horhuud; ,.'
1'1' Ih!.: Uoard hi l'!.:ljuircd not only tu
cun:-;idel' the criteria sd furtl. in l the zon-
in~ regulalions I, but specitically to balanc~
tlll' m:eds of amaleur radio pl'olJonent:i
ag-ainst the impacl:-'. un lhe lIt'ighbol'huutl
as tlt:lt'nllinl:d pllrsuant tu llw Zoning lte~.
ulutiull;
llln pt.'l'rUl'lIIill~ thi;-; I't'qllin~(l IJat-
<.1l1t'illg, the Ullilnl rUllb that till: l1l:l,tb of
the Applicant "tlo flot uutwt'i~h the
atlvcni>c illlpadS un the lIt:ighbul'hllUd, for
the I'ea~uns that thert.' is l'vidcllt'e that
uthcl' ham radio o[ll'l'atillll:'J currently cxbt
in the ncil-{hburhuUl1 and lTll't't the :{;>-(oot
ht.:il:!:ht lilllit,ILion; that tbe need or the
AppliL'ant fur a highcl' tower hen: is for
illll:n'lllltilwI11,d Iran:->lni,.silJII. tl'I.'lllllt'al
;lllaly:-.is .\I111 :;l'wlltirll' n':-.t'art"h; thilt;t 'iO-
roul lu lUll ["!llll tuwel' will ~'l:-.u;dl,v alld
;lt~,...tlidil'all.v dq.'r.llk till' /ll'l~hhlll"ltO\JtI,
Ita;., lhl: 11()lt'lltl;~1 llJ l'('dIH'I' \ll"llllL'rly \'al-
1.",,11 HO;II/,dl"U' /'..,1<11'111'" I" .\"I,d,I" 11,1,110'
Jmdlll(),IUI I ll..:J'J-,":. 1)1"II(,~ l~,,"'li
(I'!~'>) "'>1 '<lII"I'llll'L \H' ,~,Il 1..1,1 Lu dll'>
IUllll[; .... 1'1{\1 I
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it:--
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EVANS v. 1l0Altn OF COUNTY co~rlts
ClleR~994 F.M 7~~ (IOth(:lr. 1993)
ue~, amI .....;11 gTf'atly exceed and ishasical.
Iy inf'ompatihlc y,;th the onc~stm''y resi.
flf'nr('s in Ill(' arl'l1; anr! that olhl'r loca-
tiuns mdsl within thl' 1II1i1l('orplwall'd
County whl'l'f' :t propos/.r! tUWl'l' flf I his
hl'il~ht, wnuld hI' IIlClI'I' ('olllflatihh. with 1111'
sUl'rollllllirw Ill'i~hhlll'IIlUlfl alld <'mild hi'
:lpprf)vf'rI.
IV
The Uislrid Cnurt J)("('isinn
EVlll1S om'I' ;t~ain appl'JI\{'d to till' district
rOllr\. ('(mtr'nrlin~ th,. (;olml..v\ lllIP!ira!.ion of
it~ znnin~ ,'pJ:ulatiom.; had hl'l'" pn'I'lllplpd
hy Ihr' FCC ol"rll"r.2 ^~ Uwrp Wl'rl' nn dis-
IlItl/.1! isslu's fir m:ltl'l'ial fad., hoth partic's
mov.." r"r SIlHlIJI:lI''y jlllll-!lJJl'nt.
Thp district COlut in an unpuhlished deci~
sion. 1....{l(/II.'i 1'. /lom.rf f~f CfJnnty (,'mnm'nI,
No. !)(}-F-ll!iO, Dec. :H, l!J!l1, gl'antl'd Ev.
an:;' motion fot' !'ummary judJ..,'TIlent anrl heIr!
the I'r~'1Jlations were invalld as applied. The
rnur! ha!-'f'd this cJr'('isinn on three "oint~: (1)
thl' Zflnin.1.'; Hpsnlution initially was prpl'lllpt-
eel hy fl'cl!'J'al law; (2) t1w Board fai\t'd tl)
arlc"lllatc'I.\! consiclc'r I':\'ans' nf'f'l!;-; fo/' H
.'I.t':lIl'l' :11111'1111:1 Iwivht in vinl:ltiulI or l'I~Il"I;
and f:O till' (;OIJllty h:l:--l'd ils dl'llialllr ";\'I.IIlS'
afllllkath,n UpllTl illl'Onsislf'llt J,!fllllfUls. TIll'
('flurt Own sdpdl'd flIH~ of Evans' four prn-
po:;pd options and ordered the (~Clllnty to
upprovp lllf~ application fill' a spf~ci:l! IISf-~ pl'r-
mil tu t'!,f'{'t an l~iJ,!hly-fflot antenna \'11\\.1'1'.
V
The FCC 1{('J[ulatiuns
!-;\'I~I' .<.;itH'l~ (;llglil'lrno ~htTnlli ('I'I'dl'cl tIll'
lil'~:l radin <Int.e'nlla, cord1ids havf' arisl'n !){'-
tm'f'n a!n;lIl'llI. radio tlpf'ratOl's and 111l';11 ZOll'
ill).! ;\lIl!lllriti(,,, etlll(,(','ninl! th.' lH'it:hl of :1\1-
{I'nn:! 1t!\\'I'rs. AlTlall'lIr rarlit! npI'l.:11lJl':-- wl'!l
knlll\. tlll'lI" :lhilit.... tn df"l'li\"f'l.\. n'('l'hT ;llHI
tr;u)::nIi1 1''11Illllllllil.:tli!!Il'' dinTl!.\' rl'l;lk.<.; tll
2. 1.\';lrl~' ",it H~I" hrn:Hln lh;11l l"dll;I!<',l ;Ind
dk" IIlv"k...J dll.'IL'l~ 'qHHI ilw I:ltl;d I~di,jlll "I
II" I "11I11\.~ l"I\IHl' "'I'llbll"I\~ Ill< .diqli,1
""III I.. 101 i11t. l"llilll' 1"l'ld,oIi"I\" W,.I'. I." i~dh
Illll.] .'~ 11\,' . "1111 1"t',IO>I\..1 1110' 1'0111111' 1~,'~"J\1
11"11 ;.1" tl".I..-~ 11.. .,I,....IIIt.. 11O.,~,j,l 1''' .I111llll"ll
N, III"., 1'''11 \ It;" ~11'1"..,1...1 II ,i~ 1'''111''" ,01 II...
,1,," h' l "1111. ~ ,t,.C"I""
75!J
the hcig-ht and loeatinn of thpir ,'adio antC'n-
na. It i!' dOllht.ful thl'rf' f'xi~t~ an amah'm'
radio npPl'atm' who dops not l1f'sil'P n hi~hl'l'
lInl1'nnll. On lhp nthl'!' hanel, zunin!! nnthllri-
lit's f'\(i~t, in pllt'f. In I'f'l~llbtl' lallllll~p hasl'll
npon IH'sllH'lit' CIlIlSidl'I'al;olls. (lndnnhll'dly,
l1Iosl zf111inl~ IIlllhol'ilit.s wfluld i1l"I'st rf'W st',,-
nal'ill~ mlll'(' 1 hall IIll11 uf II hillh ~tl"f'l tn\\'f'l'
nnl! ils aHrlHlanl ~"f~' wil't'!-l pl'otruding- fl'fllll
n 1'('sidt'111ial n('i~llllnl'IIPnll :lllll illtl'rfrriI1l!
\\~th a ~upt'rh mountain \"if'\v.
!
The FCC, I'('l'og'nizill~~ the inhl'rPllt and
('~ntintlillj.! ronllil't ht'tW('('1l radio 41111'rat(}l's
:mt! wning :1Ut.!Joritips, nttf'lllpll'd In l'!'~flkt,
t.hl" ('onniet h,v ;~~lIillg an fll'dt'r d('~('ribf'rl as
PHIl-t, whprt'ln till' FCC Sl~lh'd, in pHrt. as
(flllll\\'s:
In I his situation, \"'p hf'lil'\'1' it is appnllll'i.
ate to strike a halal1l'(' hf'l\\'t'l'll tht, fl'(!l'ral
intl'n';;;t in Ill'llllloting- amatt'ur 111ll'r:ltions
and the Ip"....itimale inl<'T'l'sl of loeal gnn'rtt-
ment in rpgulating local zoning matter:-.
The cornf'r~tone on which we \\;11 prpdirate
otlr dl'dslon is that a r(,;lsonablp at'('(ltJ1tHII-
dation Illay he m:ull' lI('t\\'t'l'lI tht' t\\11
~hlf's.
Stnll' lInd Iclt'JlII,,.~rlll11lilln.>l, Ihlll np
('rail' In I'l't'rllllll' :l11l;ltI'UI' t'OllllTlllllit':lliull!-l
ill Ihl'ir rllOll1lllnilif's al'" in din't't l'Oldlid
with (('(11'1':\1 objt'rt in's and mllst ill'
pn.'l'mptl'cl,
WI' will llot sl't'eify any p:wti('\I-
lal' hl'ig-ht limitation lu'1nw \\'hi('h n lilt'al
,l!n\'f'I'IlIllC'nl Illay not rt'~\lI:!tt', nor \\;11 WI'
Sll~gl'st tll(' pn'dsl' lalWllag-I' that mllst hI'
clllltallH'(1 in lncal llnlin:\Ilt'l's. fLlnral
1'l'~!1lt:ltiI1IIS \\'hich illml\'(' pl:H'f'!n{'nt,
Sl'l"I'C,t1irw, 01" Ilt'i~~ht of :ll\klll\as ha....I'tJ (,n
hl'alth, ~:lff-l.\., 111' ;\I'sllll'li(' l'nll~iltf'r;\li(lIlS
mll:o;t hp CI";II.tl'd tn ;\('cfllnrnodal(' !'('asnn.
ahl.\. :\Il1at!'\lr t'Ollllllllllll':Ltion.;.!lI ;lnd tn
n'IWI'SI'nt (lit, minill1\llll l'ral'li{';dd(' n,\..."d:l-
tinn 111 ;It'{'tlfllpli...h till' !(l\';1l :llllhlll"ll\.....: It,.
gititl1:ltt. pllrplht'.
"
;;
.1.
.~,
'"
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....II..
,".....
n::t'I~;
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''',', "
, '!~f'~
<-
I"K:"
"I;~}\
.:.:[,
-" ~~~
"I'"
'l~t,
:+
~. III ;It.Ulrd;ltlll' willi lhe ~lll>~nl1lt."1 I (C paIn
;11111 "liter (~1". hl\. \". 1,..<11 (h,' phi "". .1<, "Ill.
Itl"d;,,,' tl':I"'11.1I1h ;UlI;llnH lUllltll11111l ~111"11' ."
. '1 '.<I~"T1.lhh ;"" '1111111 ,d.lk ,1111.'(' 111 ,"111111111'" ~l
1l"1I~
. 1 ,~.
I :Ii;
! ' .; ~' I
. .:1;'1';:
~_~m :~'
:iJ;-:'
,,1..:..
_....~ :,.
.
mil F1WEIL\L ItEl'OItTEH, ~d SEll
760
"-l:~-l:
. l;'I,~if . '
:j;'ylfll, '
.-"""
~'f ,H.
;J'~' :
'1'111: H '(: 1'0110\\'1'1\ l'li.n I witll all unll'I' 07
Ci"H ~ H1.I(I(t:J), wlllch 1:-'< Ijlllllt'lllL:-I fl1l1pw~:
E:\l'l'pt ll::i Iltht'rwi:-:.;' (lruvilll't1 hl~ft'ill, a
r,l;ttiull .mtcllllU :;lrudlll'l~ llIay Ill' l'l"l~l'kd
atl\l'i~ht~ awl t1illlvlI:,iol\s ::>uITlCil.'lIl to ac-
comtnl,tlatc alnatl~IU' service CllllltllUllica.
linns. State lllld lllcul rL'~lllatiun or a sta-
tiun antenna :-;trul'tun' IHII:1t nuL pl'l'dutlc
alllateur service COllU11Unil'atiollS. Rutllel',
it must re..\sonahly <.lcl'ummodate such com-
munications ;.md must con:stitute the mini-
mum l'nlctil'ahlc l"t'g-ubtillll tu al'l'ullIplish
tlll' sllllt' III' IUl';1l ;ullhorily's k~ililLl;lh'
purpnst.'.
t 11 Thl' rq.{uhltions alh'lIIpl tu st.ril,c a
l'ulllpnllllisl' bt.'l\\'t'L'1I tWlIl'III1lJldilL~ illtl~n:sl:i
;llld, ;IS is trill' tit" lli<lIIY l'Ollllll'Ulllisl'S, lwvl!
ullIiul'll till' ddails Il.'il\'illj..{ bulll sidl's the
illlPl'l':-isiulI they rel'l!ivl!d the hi)..1;csl plel'e of
till' divided l'ilkt'. Nulwith:-il<llldillg" the in-
hl'I'I'lit \"agtlL'IlI.'SS ill lhl' 1;1I1g\ia~l', sevl'ral
pl"illl'illlt-:-i Hlay hi' ~h,.ult~t1 frolll lhe FCC
l'l'I!.III:ltillllS, I,'il'sl, '1.1lllill~ <Iuthol'ili,'s IIlllst
, n'llsllllllhly lII'I'UI\lIllUdatl' ;UUlltl'll!' 1'llllllllUlli-
l'atiu1\~. SI'l'UIIlI, l(lml 1'1'~ul;ltiuILS ~huuld ile
the minimum (lraL'lil'ahle in Ol'dl'r to accom-
plish thl' ZlIuinJ..:" authurity\ legitimate pur-
ptJses. Third, local authorilies may nut altu-
gether Iln::clude amateur communications.
FinaHy, the FCC has explicitly dcdilletl to
regulate the spl'l'ific pel'missible heights fur
antenna tllWel'S.
\'1
1'l"l'l'IUllliun
12,:11 \\'1' n'\'ll'\\' IIH' di:...triet l'll11rt's grant
oi" SllIlllll~lI'y jllllg-llll'ul dl' IltlVll, First II/It'/"-
:-illite nUll/.: lllkl/I'/'/; N.t\. u. Ilriug, ~lti~J
F.:!t1 ~:H, l'J~J~I-~Jli (IUth l'il'.l~j~J~). l"l.'I"l.gl"anl-
ed ill part, - U,S. -, 1l;; S.Ct. :!.!J:!.7, t:!,t
L.l':,L~d ti7H ,;j lJ~,L'w, :1ltJ;;, JSW IS,CL
.hllll: 7, l~I~la) (1\11. ~,~ -S;)-I). '1'llll:-, we ~i\'l.~ 111/
dl'li.'I't'lln: tu till' di:ilril'l l'Olll"l';O; pn'I'lllpliull
dt'h'l"Illllliltitlll :llltl I'X:UlliJ\(: thl' Ill'l'I'llqlllltll
i:>:"'lh' liS if WI' \\"\'1'1' :-iittilLg .IS till' ll'i.d l'ollrl
ill till' fll":it in~l;IIH"l'.
Il,jl Till' :--ill]ll't'lll.lt':,' ('\au;;t' (Art. VI) (.1'
thl' l'ull:--titutilJll IJI'l)\"idl'~ (~IJ[I~Tl';-i~ \\ith llll'
PUWt'f lo Jln:I'lllpt ;-ilall' law. l'I'l'I:lllpU"Jl
may un'UI" ill any 0111' uf at It:a~t ("OUI' sitlla-
tlullS: (1) t'xl'l"l'SS p"I'I~lIlption, whirh n::sult:-;
wllt'n (:lIlq..',n'~;s t'XPI'I':-lSI':-i a dt~;U' illl.\~lIt t.u
I'I'l'l'lllpl slntl: law, Mu/"uk.'j /', 'J'/'IIu.'i World
Airlilll",-;, 1111'., - U.S. -. -, 11~ S.Cl.
:!U;II. :!.U:lli. It!1 L.Ed.~(1 if a (1!)!J:!l; J,(Htisi-
(ll/O 1'lIh/ie SIT/!. Cumm''Il j). FC(.', 471i U,S.
:!r)~). :Ui~, lOti S.Ct. HmU, lSHl:\, UO L,Ed,:!d :UiH
(1!IXlil; (:!) implied preemption, which I'e::iult~
when statl~ law "stand~ i.1:i an oll:;ladc to the
l.Il.:l:olllpli.-:;hlllent and executioll of thl: full \lUl'~
pose~ antI ohjectives or C{Jn~J'c:ss," H ine~ "v,
/Juvidolvil:, :U2 U.S. [)2, ti7, Hi S.Ct. a!J9,
40\, Hr. l..f;d. fiHl Oil4I1; ell conl1id preelllp-
lion, whirh I'l'sults fruln all Hl'lual l'tJlltlkt
lIdwCl:n federal allll ~lall~ law l~VI'lI lllllllJ.:h
CUllgn:ss iH silent. Florill(l Lime S: A /.'fII:wlu
(;mwcr,\ 1m:, v, J.(lIt/, :{7;) U,S. la:.!. H:!. Ha
S.Ct. 1~1H, 1~17, 10 L.I~II.~d ~.1r: (l~JIi:"; i.tIHI
(4) tidtl IJI'I'l:lIIpUOII, which I'esults 1'1"11111 a
dt'tl'1"I11illatiul\ lhal (:llllg:n'ss intl,Uth'll to 1'1'-
mOVe an {~tllirc :mbjel'l frum statl' I'Ch'1Jlall)ry
authority, Fiddity Fnlerul Suv. & LouII
A'is'/1 /', dl' Ill- ('11I'..../1l. ,IllS 1l.K 1.11, lrla, III~
s.n. :1lI1,1, :JU~~, 7:ll..[<:(L~d 1;1>1 (\:JH~J. 1'....-
1:llLptilllllllay also n':'iIllt 1"1"0111 adilJll taken hy
II ft,tkrHI HJ.!Yllt''y Itt,tillJ.: wlllllll till' l"it'lIpl~ or
its l'llllgrcsslullally lldl:~alt.'ll Hulllll/'lt..v.
Capital (.'iti~;<( Cuble, I tit'. v. C'ri.'iIJ, 4li7 U.S.
mn, LiH~. IW S.Cl. 2Li'J4. 270U, HI L.Ed.2l1 fl~O
(lilM).
[61 By applying the basic legal principles
undt'r1yin~ the dtlcl,.ilH~ of preemption tu
PHil-I. we reach the fHllu\\in~ conclu~ions.
Thl' FCC labdl~<l I'lU3-1 a~ a "Iimilcll pl'e~
emption policy", and ~pl'('ilicaHy staled it
would \1ot :-;pt~l"ify allY Iwi~ht lilllitatillll, bul
l'lal'ifll'd tll.t\. lur.1i autborilit's lIlay Illlt I'n'.
dllllt~ alllah'lIr l'OllllllllllicatillllS. Ih'l.':luse the
F{ 'C expJieilly dCl'lilwd to I'l'gulali' the
Ill'il!,'ht uf radio antl'nlla loWI'I'S, ~uch regula-
tiull fl':-its with tbl' IUl'al zOlling auth(Jrilil:~
prilvidt'd the)' n'i1siJllahly :ll't'Ollllllodate ama-
h'lll' l'UlllIllullicaliollS with the minilllulIl Jll'ill'-
ticalJIt- I'l'~'ulati()ll rWl'l:ssary to ilt'I.'Olllpli"h
thl'i!' !lUq)I)SI'S.
Ft'lkl'al l:IHlrb !J:tve g-iVl'1l dh:d tll thl'
lllllitl'd !1l'l'I'lllptiU/I !Jolicy Ill' l'I{H-l. III
'J'hnil,~ I'. ('It .II ,,"I,IIJ'I.~/d/" l'lI,-k, 77~1 F.:!d
11-"7, \1;><,\1 (lith ('il'.I\'''''lil. It was n'l'll.~llil.t'd
Illal ;\ 'l;llJ upllJlLlll' l'l"t'I'UIJIl or allldll'ur radlll
:...l~ltIIIIJ ~lllll'llrI<L'" 11l;1:,' t'1l11Lr:I\'I'II\' klkr:d L;w.
('lJurh have :...Ull,"'I'ljUl'IJLl\ Ildd ltJal ;lll) IUI'aJ
IInlin;1I1l'e wltlcll dL;-lllull'l,\' [iI'Ullll'lb ~ll\{l'll-
!Las IIVL'I' a l"l'rLllll lll'lglll '--> IlI'l"l.'SSanh
I
(
I
I
I
I
I
I CIt(' "" '194 L2lI1~~ /lnlhl>lr. 1'19\1
~~~('fnpt('(1. Sr,. g,vnl.'f H !lflfltYf III ('''WIlly 1"1'\'ir'\\'il1~ ('ullrt s}\lIllhl apply nl\\'u"plll"l nnnl.
Cmnm'T.'f, 7r;2 F.Sllpp. at !'I77; flndorJY 1'. .""Hi~. Sf" I/I/frhi~. fiil [".Sl1pp. at 127.1.
r1ll'rH7lrm"rd Vi"".'/" (!( Sm'/(I.~ Poin', 1l~1 First.. thl' ('ollrf 5:hollld f'x:unim' thl' llPpliC'l1'
~'.SIIPJl. HlWI. 1111:1 n':.n.N.Y.l!'~7). MflI'P- bll' rf',Io!'ulatilltls tn c1t'tl'l'lniIlP if tlu')' lll'n fa-
n"'''T. romts havp 'wid that 10(';\1 orrlinan('PR dall~' ('on~isu'nt with PRB-l. In this {.:t~C'
art' pn'f'mptf'r1 wlll"n. a~ appli(ld. 01l"'Y elo not the distrirt court found the' local ,"pglllatioIlR
providf' for the rf'ason:Jhl~ al'commodation of facially valid. and ~inC(l nf'ithf'T )lmty :\ppf'nl-
amah'ur radio communieation!'. !vfnrj\fifltIH
ed that holding, it i~ unnE'ce!o;sary to analyze
It City '~f Rnrky Ril'~r, 74R r.supp. 1241, the first prong, Second, the revie"'1ng court
124r: (N.D,Ohio H)~o); Rufchi,'{ II. Cily (l examine!' the decision of the local hoard to
Ed'/1/lmrl,'1, n7t F.Supp, t270, 1274
detprminf' if the local hO:lf'(I'~ tlpplit'ation of
(W,V, Wash.! !IX7l.
the r(,~lIlations is JlI"f'cmptl'd hy PHil-I.
:.;1"
.
IWANS \'. HOAIW OF COJINTY COM'US
761
;'
't<'
Although courts have found local ordi-
n:lnrl'S prf'C'mJJt,'d wlwn a lu'h!ht Iimit.Btinn i~
impII.'>{'c1, tllI',V I'('('o~niz{' that zflninj.! is typi-
call,y a fllnc'lion ITs('l"\'('d fol' locall"!j..,'lllation,
"Land us!' poli('y t'llstoll1:1l'il,Y h:ls h('('1I ('on.
:-lid""I'd a [{'atlll'" of lo('al ~lIVI't'IIIlI(,1I1. :nul all
an'a in whirll tI\I' tenc.t,<; of fC'c\l'l'alism are
partil-ularly strnnl-:"." 1::':::'0 I'. UO/'fJ//.r/h ,~,. flip-
cr /';rlW'. :-0\.1:{ F.~d 7fi;l. 71i!! (:{d Cir.l!'~H),
Thlls, ('Olll'ls ~hl)\lId 1'1'1)("1'('11 wilh (';\Iltio!\
Whl'll ('on:-:idl't'ing- wlH'L1lt'1' pl'l'ds(', :-\1J('dlil',
111t'al nnlinan{'(~s an~ pret'mpl('d hy V:lj..,'lll' 1'('11-
l'!';11 f'f'~\Jlal.iollS. 1':\'1'11 th"ll~h lhf' FCC 'las
till' [111\\'('1' III I'nal'!, I'f'h'-II!;ltilJIlS whit'll woult!
,wI'l'mpt 1'f1tlnidillj.!; Ifll'al OI'din:IIH'l's. it SIH'-
dli(':dly ,,,1:111,11 "11.1111' ('01'11<'1':-:10111' 011 \\'hirh
WI' will pn'llic:ltp 0111' d(!d~ion Il'ltH-11 is
that a r('asflnahlp <lecommwlat.itJtl may be
mad\' h('lw(,l~n the two f-id('s." I n fact, in
PHB-l th{' FCC ("xpre~sed it", desire to give
deff'f'(~IICe tu the lotal authorities: "We arc
(,Ilnfirl('nt. tll:ll. stall' nnl! lo('al gnV('I'n-
ml'nls will l'ndf':lVnl' 10 j('h.;slatt' in a IWlnllE'T'
that afrords :IPllI'(lpr;:tlp I'I'f'n~~n;tion 10 t.ht'
imporl.ant. f('dt'I':l1 inlf'I'f'sl at sl.:lk(' 111'1'1'."
1'11('1'(.1'''1'1'. thl' H'( ~ has (If'('idl'd 10 tlf'l'nlil
IIH':II rl'~ulatlll'.v 1l(,II:I\"illl' \\'hidl ;(('I'111111)1;:.;llI's
HIP I(wal :W"flf',V's Il'~~il itllat,(' Plll'flOSI'S
lhr!lllvh till' 1l1illittllllll pr;ll'li(';lII1., I'f'vnlalilltl.
VII
17J
tlOI1:-1
H.'vil'\\, or I Ill' Huard I )l'l'i...illl1
III t"l'Vj"WiIW l!1r:t1 l:l1HI II'" l'q~ld;l
or ;lItI:tll'llI' ,'a1l111 :lI1II'nll:L /11\\'1'1":-:, :1
4. Thl' Sllpllllll' (our I in 1-f1"'1/ \"'lll 011 In llO,ld
111;,1 Wlll'll" ',I,lll' :11"IllY j, ,'tllll\' III ;1 ill.llli:,1
1:11,,10 il\' Inh 1.11 ''''Ill'' 111",1 ~'''-,- II... ;1\,,'1)1 \'-'.
btl(lIllllllj' 1111' ':lIHI'IHnlll'i\t. dirt 1 C" whill1 il
w",dd Iw "'lrltkd in rill" 'LIIL', "llIh 1111"11_ ,171'1
[I... ;1/ 7'1'1, 111(, ....ll ,II 122(, IJI<' .11'1'11< ,,1,r.-
LIt\" 111 1 "1".,ld,, i, Ih,d .1 It'\l<"\\IIlL' ,,"HI I ''';1\
Il"[ ,d ;1""1.- II". [I""ld', dt'"i"'I'1l IIllko;, II j,
I~. 9,"'n Ill'l'iding \\'hdlll'1' thl' BO:!l'il':-:
r('J~lllations an' fll'l'('mp(pd a:-: applil'd to Ev-
ails' Kpt'l'ial liSt' JlI'I'l1lil, WI' J!i\'t, 111\(' d('fl'l'-
I'W'I' to thl' r:u'ltml dt'tl'I'IlI;lIatiIlH:-l IImill' iI.v
t11f' OO:lI'Il. Fl'clPral ('otlrts should ~i\'t' 1'1'1'-
clU!-lh'l' l'rrt'l't to the f:\l'UindillJ,! of stall' 01'
I,)(.'al i1(lminist.mt.ive ll'illun:lIs. t.'"il'(,I','fit" of
Tf'IIUt'.'f,'I.I'I' 1'. f:fljllU, ,17~ 1I.S. 7~~, 7!1~, Hili
~,CL :l~~II, :~2'211, !)~ I..Ed.:!11 l);lrl (1!I~Ii),1
Thf' di~t ri('l ('Hurt. did lIut (,xl','C'i:-:l' !'uc.:h dl'f-
pl'l'n('1' \\'111'11 it. I"f'j('(,tl'd thf' HOHl'd's (,olll'ln-
:--ioll that tilt' to\\'('I' would II(' il1:uh''l"atl'ly
SCI't,(.tll'r1 hy trt'I'S, Thl' l'Olll't Iwlll tlll' 1':llitl-
nalt, \Va!' inclInsisll'nt.: "lrl11l1lph'I(' shh'\llinj.!
of till' alltl'nna lIy ll'l't':-: would illll':l('{ llIoUJ\-
iain view~ no I('~~ than the atllt'una itf-df:'
It was improper for the di~tri('t court to
reexamim' the Hoard's factual l'ondll:-:ions.
Thereforf', upon cxerri~ing- our de no\'o ft..
vi('\\', Wp nt'l'd only dl't('rmillp whd !H'r thl'
Count.....s applicatinn of its 1(1(':t1I'('J-..,J1:tt;nn~ to
lht~ fads as t1w,v illl<'l'!lI'l'lc.t1 tlu'lll arl'
11I'('I'll1plf'(} iI,v f"df'l'al la\\',
PHH-I did:dl'!-' Ih:11 lul'al ordin:llll'('!' arl'
PI'l'f'Tllpll'd ;l~ :lpplil'fi III halll ,.:ltl;n IIJlI'I'1l1nl's
\\'11f'll tIH'.\' fl.l IH\I I'l':l:-:'ltl:lllly :Il'I'IlIIII1Hulnll'
atn:df'llI' ('omnll1nil':ttilln.,: flll"lllt!11 tIll' 11':1:.;1
I'l'SI1'idin' rq~\ll:dilll1 J!l':ld\(';!ill.,. III l1I;1kin~
;1:.; 1!t'!C'l'lllil1:llillll, 11ll' 10(':11 11":11"11 !llll'" 4'11"-
:-:idl'r ;111 rdl,\.;ttll r:l('tlll'~; and 1"I,I,,!"!' pntl'II'
ti:tl :l!krl\:,t;\'I''''. /fl!wonl I' l.udulllfll'll'.
lltl"lll'l"l1lnt hv ;lllV UHlll'vll'Il1 v,'idl.tll\"'
u",,!,j "I .\\\,''''HI'II/ --\/'I,,',iI. ,- ("1"",,/,, .hl/!,-,,:
{"lnl" 7(,} 1'1.1 I.lf>. '''I I( "J" l'l,"l.'ll (qIIPlill\'
/I",I"l "I ("!I"lf" (""'"!I'I' I ('"/,,,,,,1,,11,/ ,,'
""""",'111 ;\/'I"'liI\, t>!,'l J' 2d I ';It, I<;~ l( "I.. ll.
/\1'1' I'l~lll Iln;lIt'I' IIlllt' \\;'" ,'01111','1\"111 <"\1
d,-m <" in "UPI'''t I 01 tlll: 11",11.1, IIIHllnl" w,.
;ll'ltlttliTlL'I\ \'t~'l" Illl'm 1'1",-10""" elk,!
,
'.J.. .
nt.',
d"'"l..
.
~~I FIWEltAL ItEI'UltTElt, 2<1 SIES
71i2
I"
'to
"
'.,,:~'
w;-;s Wi. lIi~I07.1, 'I':~ (N,D,CaLl~I;-;S) (unpuh-
Ibhetl lb.:i:-;iull); ,'WI' u/:w HtJdol/!J, li;-;}
F,SujlJl. ul HI}:! 1:1.
llU I Tim (joHnl IH'1l1'l1 llll alllllulalll'I' of
teslimuny allllrl'~ difknmt hcarilll4s rc1atillJ,!;
to CI't'1.:lillll of all allll~nll<l towel' on EVHIlS'
fJn'11t'J'ty. 'l'llt: BUill'll e1it:iletl C:OInnwnls
frolll E\"alls, hb lll'ig-hbul'S, I'X(lI'l'ls till ham
l'Iulill, illHI expl'rls ill n'i.L1 l':-;t<ltl', FOlll' of
~\',lIlS' ;I{ljul'l.'lll Ileighhurs were veill'lIIClllly
upposl'd lo the 1'I'cction of a towcr in CXl:ess
of thirty-fivc fecl~ EV~UlS was providcd the
ul'porlunity tll I't'spllltll lu till' l'UIIl:CI'It:i of
thiN' whu upptlsl'd lib ilPplit:atiuu fill' a JlI'I'-
Inil. By tIll' 1'lId of llll~ lll'arillJ,!;s, thl~ BIl,\l't1
WIlS \\'1'11 ,tWlln' lit' tilt. I'itllg-I~ of l'UIlITnIIl1iI';t-
~ tiOll l'ilpability thaI l'ould hI! adlil'\'I~t1 with
lUllt'nlla IOWI'!"S of val'iolls h{'ighb, In fact,
prillI' to lIw last lH'aJ'ill~ Evans wrute a lettt'r
to thl' County ill which he sl:rtetl it would hc
1I11IH't'I':->Slll')' to prl':->l'lll furtlll'r l'xpcrt tc:-;li-
mUll)" as "most of the issues have hcen
thrashed tlu'ough ad il/fil/ituNt in our prcvi-
tillS 1H'<t1'i11g-S,"
.\'..',
Tlll~ IIUllldl'l' 1't111l1ly I,lllld (\St. Slilrrdrall-
t,tl II f\llll'.llil~'{' lIIt'IIHlrHlH!lllll SUI111llOll'izillJ..:
lht' 1'1'l\lIt':-;1 lInd iljlplil';ihlt, slill\llal't1s aud
llltilllillt'\y t'\lJIdwling" tht' to\\'I'1' \\'ould ill'
inadl't1Uiltt'I,v S<Tl't'lll'd ami would not hc ill
hanl\llll.\' \\'ith thl' SIIlT(ll1ll(lill~ L'lIvinlllltll'lll.
St;df n'\'Ullllllt'lldl,tl thid il sh.ty-fuul nanh-llP
tllWl'r might bl' ;t f"ilsibll' alh'rllilli\'l'. Ev-
ans, hO\\'l'vt,,,, te;-:.til'iL'd lhal a l'rank-up tuWl'1'
would be implausihle, a::' it would not with-
stand tltl' hig-II winds that frequent Boulder,
Ultimately, aft!'1' the Aug"llst 21. I!J~J1,
Iwal'illg, IIH' ('lIullL.\' again tlt'llil'd the pt'I'lllil.
The Coullty inlerpreted till' FCC n'g"ulations
tu mandate a b.danving- lwtwl'ell thc needs of
thl! alJ1akul' radilJ !Jl'tlI'UIH'lIts and till' ad-
\'L'rSe imp;IL'cs Oil the neighborhoud. In pel'-
fonning- thb iLn;t!,\':,>is. tilL' Cuunty dl'lel'lllined
1::\'aos' lIet~d rul' ;t hig-Itl'l' tower ......IS olll-
wl'iglll'd II)" thl' ill'SlhL'til: \h'gTadatiull of the
llcig'hborliumi ilnd putl'lltial n~duc.:ti()ll in
prUpl'rty valtu' Till' HUiinl furtlll'l' sug-g-t'st-
I,d that lu\:;.ttillll:-; withill tlll' (:UlIllty c.\i:-.t
wl1l'l't, :-.lll'h a prlll",;"d {',Hild Ilt' appro\'e'd,
I'HlI I l'l'I'llglll/,e':-O lll;ll /"t'guJ.lllIIJI." ;llll't'\
1111-: till' pl;It'l'IliC'ILl, '''l't"I'l'lllll~. ;Illd lH'i~hl qf
;lll!t'IIIl,I:-o an' I'I'l'Illl:-o..,ilo1c' Wltc'll ha,"'l'd 1111
health, :-akty (II' tll':-.IIll'Ht: CUIISldl'ratJIHls, ;\S
long <.I::; they rcasullahl)' <t1'l:otnlTlodate allla-
lcur l'lllllllllll1icatiolls with the llIillilllulIIllrac-
til'allll' l't:gllluliull IlI'l'eSsaI'Y. TIIlI;;, till:
l~j,t1IlIy's jllstilll'util'll Ill' Iln.....ervllJg 1I1l~
Hcslhctil' views wus actllowledg'eu uy Pltll-1
as. a lel-,ritimulc local CUnCl!rn, Murcovcr, the
County's decbiun was informed alld recog-
nized MI', Evans' ctJlIllllunil:atiun nccds. AI-
thoug-h tlte Cuunty was aware a thirty-livc
fuollowl~r wuuld Ilut t'uJIIlllcldy lIIeet EVill1:i'
lCbritimalc goals, ..thc law cannot be that
municipalitics have no power to restrict an-
tcrlnas to hdg-hls below that clesin.'d lIy radio
lil'I'IlSCI'S." WilliulII.'i /I. City /Jf Cotalll/,ia.
WI; F.~t1 !JU.I, t)VS (;Ill. Cil', UJ~J(Jl.
III otlwr cu~t:s where IlIl'al rc'glllaliull:i
Wl'l'e precmptl.tl as applied, l'lIUrl...; hdd the
record Wa..'i devoid of any l'vidcnce demon.
st.ratin~ the lloard I'l'a:-;unaLly al:l:oJnlllodatcd
the amateur operator. BodO/I!!. GHl F.SUflfl.
.1 JllI:l; /iI/kit i.. li71 F.Supp, ill 127,1. lIl1-
like the zonin~ huards in H/Jdolllj ami Hilt.
elt i,'i, thc record is replete y.;th evidence that
Huullll'l' (~OUHty rt'asonallly J:1tCtllHlIIwlali'tl
EVill1S' iUlIitlt'UI' t'lJIIlllltlllit'alilJIl gIJ,d:"i, Ilt,
spilt~ il:i t1dJittalJll' viability, the (:utlllly wu:-;
willillg 10 l'Ullsidt'I' 111(' O(ltillll "I' II ITallk-llp
sixty-flllll IUWt'r ill all t'ffurt tu n'a,stlual,ly
at'('olltlllodale EVi.IIIS. The Bu,lrd .lbit) ill'-
pruvl't1 a sJlccial use pl'nllit fur .uHJlher tow-
t~r ill I'XI't'S:; ur thirly-fi\'t' fn.t, whel't' tlw
COUllty 1'l'Il that thl'l'!.! was adl'quak :-1'1'1'1:11-
ing :wd the ...ie....'s Wl'n' unilllpaired. Finally,
the County';.; rCl'ognitiulI tbat otl1\'1' \ultcl1lial
locatiuus might be lllurc ~Ilital,le fllr the cUIl-
sLrueliulI of thc tuwer dt-lliolJstrales till'
COllllty WHS !lut illllt::\ihlc ill its l'IJIISidl~I".ltillll
IIf Evans' <Ipplieatiuu.
The Huard in draftilJg- its res(llutiorl l11is-
characteriZed its rcs(HJ/lslhilit.v tu l'easonafJly
at't'tJll1l11e.date as a balalJL'ing- test. "tIjll pel'-
fonning- thi:-; requin'd balallL'il1/.{, the Uuanl
ti/llb that lIle [l('l.!lb uf till' A!J!Jlil.illll do
not outwl'igh the <Idn'rsc impill'l:'. un lllt~
lll'ig-hIJiJrlllHIII." 'l'hi.., balallcillg- appnJilt:h
\vas adopt,'d by till' Fourlh e'ln'lIlt. "Thv
LlW n'quin..... (Jllly that llll' City fJalOlllCC tilt:
f,'dl'I',dly rt'l'tlJ.:,'lIi/.I'd illLIT\':-.L III ,Illl;ltl:ur j";l
tlllJ l"lillllIIIIIIJI',ltlllll." with I",.,t! L1,nlllg 1.(JJI.
nTlb. H.dl/(/III,~, ~'tJli I'".:':d ;,L ~I~I,"'. W(,
lwllt'\l' lilt" h;dillll'lllg ;QIJll'lI;n'il 1I1Ilh'rn.pll'
Sl'llt:-.lhc V('(":-; gUill.-, a:> Il :-,pl'l"lfll';.dl) ,,,t,ll-d-
t
\
I
I
t
IN 1m I1ICIIMWS
Cite 1.,,994 1'.2d 7td (llllll tlr. 199.l1
Ja-
Il'.
111'
Ill'
f'>l) the "rf':Jsonahl.v ,I('('ommof!atc" language.
NI'\'(~rth("f'S!-\. (l('st1itr. its mis('h:tI':ll'tPl'izlltinn,
Houhh'r County rn:ulr efforts to I'f'asnn:lhl~'
ll(,f'rHlllTIodalt' EV:tlIS' {'nrnllHlllh'ali'lll f1f'f'<ls.
In this {':ISI', df'llial flf till' (l1'I'mil uftl'!' l'\':du-
:ltin~ opt.inns and I hOJ'ollghly considl'ting till"'
rf.lfI\'anl ('\'idene(' was a ,'(';u.(fHmhle a('('ommo-
d:tlion.
hI'
~-
11-
"f'
IS'
at
n
ill
[III In rlf'll'I'mining whdhPl' the <:fllUlty
utilizl'(J l.hl' minilllllln IW:le!ieahll' I't'J.;!111al ion
in addrt'ssill-'! Evans' proposal, Hu' Coullty
nmst haw f'xJllof'f'd all('mali\'"s to a lllankd
llf'ni;d of till' applil':tlillll. S"" IIrl/nal'd. 1~1,'-:~
WI. Ili!/Oil ;11 .~;t TIll' (:r,llllly's II'J.!'itil1l:lh'
fllll'llIISI'!'\ J",hilld dl'rlyirW 111(' JlI'l'Illil \\'I'I'!' 10
111'1'-:"1""(' 1111' af'~lh('lir \'i(.ws mill mailltaill
th(' property valtll's in thl' ('ommunity. Sincc
the Count..... detcl'mined there would bc imule-
fluate scrcpning of the tower and the pro-
ro~('d alternatives h.v Evans and the Boulder
COllnty Land I r~(' ~t:dT would not alleviate
the prohlrom, the denial of the prormit in this
case was the minimum practical regulation
nrccssary to accomplil"h their goals. In sum-
mal:'-', hf't'HtlSe th~ County made efforts to
rpa:-;Imahly :l('C'omllllldatt' Evans' amatl'll!'
rommunications lltilizinJ.! Uw minimum prac-
tirlll 1'(~g11Int ion. thr> COllnty's rf'glllations are
not preempted as applied,
Conseqm'ntl.v, WP REVERSE thC' dl'cision
IIf thl' district Cflllrt and hold the d('{'isinn of
thl' BOldt/I'1' ('ollnt,V Board of COllllllission('rs
should hI' I'l'inst:ltpd :I.'; it i~ not. pn'I'mptl'll.
".
"
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o ~nl'III''''!. i'lf"
,
"
In n' William E. HI< '" \HIlS, pj'hlor.
11~ITED STATES (If '\lTlt'rit'a, Appdll'l'.
v.
William E, HU'I! \HI>:-i, \Jllwllanl.
No. ~J;!-liO!l;!.
l;nitl'd ~t;ltl':-; ('ourl of ,\pp,'a]:-;.
Tl'Tllh ('ir(,llit.
~by ~s, 1!1~1:1.
II{:-; til(.d 1lt'''1I1' of I'\;!irll 111 ('II:lpll'r 1:{
:1",", TIll' 1\:lnL:l'Ilpk\' ('lllll'l allo\\'l'd pl'lnri-
'~H r :',j 11}
7ft:!
,-,..,
ty ('Iaim, :lOll c1phtor appealed. The Unitpd
Statl'~ Distrid Court for thC' Wrstrrn ni~-
(,;el of Oklahoma. Wa)'ne K All,')', ,I.. af-
nl'nlf'd, 1-11 JUt 7!i1, :\nd dl'hlol" appl'al('\L
1'hl' (~ollrt III' ^ppl':lls, MdVilli:llll:-:, Sl'ninr
Cirelli! .Jlldg-('. hl'ld thaI as~pS~llIl'nt Iwrind
undf'r Bankt'uptC'y CudI' prlJ\'isinn granting
~e\'('nth priority I'm' unpaid inromf' t:\:'(C':, m;-
:-:ps~l'd \\ithin ::!.HJ d:1Y~ Ilrf'lll'titilll1 l'Huld hI'
~n~p{,lldl'rl d\1l'illg' !,,'nnl'o(',V uf dt'htnr':-; IHilll'
(:h:lIII('I' I;~ prlwt'l',lill/.!,
Affi1'll1Pll.
.
11"I1I(ruJlI('~' C=2!lriH
A~~t'~sm('nt period under nankruptl'~'
Code [lrovi~.;jon ~'Tanting .l!o\'ernment ~€>\'enth
priority for unpaid incomE' taxes asse~'$pri
within 240 days prf'flC'titinn ma)' hE' ~u~'lt'nd-
eel during p€>m!l'nc.v of prior h<lllkrupky ('a:-:p
ba~('r1 on hankruptcy cnUl'f~ ('f1uitahle pO\\'-
ers. Bankr.Code. 11 U.S.C.A_ ~~ 1O,,(a).
r,(Ji(a)(7)(AHii).
"
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.Jam('s L. Bpnlll'.v. Dt'1 City, OK. for apppl.
lant
Rant S, Holdernpss (f;ar,Y D. Gray, T.lx
Oiv,. IlI'Pt. or ,111:-11 il'p, Wa!'hing-lon, DC. and
.fanH~s A. Bruton. Ading As~t. Atty. (;('11" or
l'oun:-;t'l; Timothy 1>, LI'ollard. 1 J.S. Ally"
\\ith hi'" on the Iwil'f). I'llI' aPPt'lIt'('.
"
r
Hr.rlll'l' 1I1\OI:HY :11\11 1,:1:1,:1., {,in'llit
,lwll'I'o..:, :1I111 :\1('\\'11,1.1,\\1:-:, :-:"lIi(11' ('irl'lri!
.JlIlh~I',
;\h'WI LLlA;\f:i. :;f'nilll' ('ir('uit -'lId!!!',
Thie.; j:-; a h:lnkl'llpte,\' (':t~f' ill\'okill!! ~11('l'I'''~
,...i\'(' p('litillll~ in 11:lllknlpln', '1'111' 11:IITII\\'
isslll' 10 hI' n'~oh'l'd i,.. wIll'! 111'1' 1111' :! 10-41:1,\'
:ls~t's"nU'nt ['f'find pro\'idf'r] for 111 II [1,:;,(',
~ :1071:tWj')(AHii) (:;tlpp.PI!I~) ,..;lnpllt'd 1'I11l'
nil1J! d\lr;n~ 1111' pl'llfl('rw,\' Ill' 1111' Ii 1'...1 I'l'li!il,n
fill' h:lII!O'llplc',v. TIll' H;lld,l'Ilp!I',\' ('''II!'1 fill'
Illl' \\'1'..ll'rn Ili"lrir'\ Ill' (11,1:1110111:1 Iwld 111;11
Iht, ~,IO~day pI 'I'IIH I \\-a" ","II"lll'I1c1I'd" dlll'illL!
thl' p1'ndl'rw,\' of 11\1' ril'"I II:lIlkJ'llpl.',\' pl'n-
.
PRNTEL v. CITY OF MRNOOTA ImlC:IITS
CIII!Il1113 1'.~(1 1261 (Mlh ('Ir. 1""41
4. ZnninK nnd l'lnnninK <PH
Fed~ral Cornmunicationg COmmigRion
(FCC) mling felntpei to amalf'ur radio fReili.
th~R prp.cmpt..q zoning orctinancl' that. city hm~
not app1i{'rl in mannf'T that TPilRonahly ac-
('(Jmmodltt('~ nrnalC'ur ("ommllni(,lltion~.
Sylvia PENTRL. Appellant,
1
i
1
~
v.
CITY OF MENOOTA HRlC:IITS,
Appell.e.
Nn. 93-11126.
1
I
I
!
lloit,cd Sbll('~ CHurt or ^pp('nl~.
~~iv:hth Circllit.
Suhmill"d Oct, I~, Iml:!.
Decided Jan. 18, 1994.
'I
i
Amateur radio operator sued city, claim-
in~ that zoninR ordinance, pur~mant to which
she was denied permis~don to erect f>8-foot
radio antenna tower, W~ preempted by Fed-
~ral Communication~ CommiRflion (F(X;) nll-
ing T(,fllliring re;ll-lnnal,le 3rcOInmnclation (If
Amaf.i'ur communicationN. Thp (Jnitt'd RI.nl(,R
District Court. for the DifltriC't or MinnC'!-\ota,
Donald D. A].op, ,J., entered summary judg-
ment for city. and amateur radio operator
appealed. Th" Court of Appeals, Bowman,
Circuit .Judge, held that city did not reaf1on-
ahly accornmnrlatp amat.eur radio opf'ralor
when it Iimitf'fi her to continuing- u~e of
ineffective !)fi.rr-foot antf'nna. ami thcreforf'
city'~ 7.lIning ordinance W3f1 prf'cmptrcl.
Jlf'VpnH'fl lUlCl rf'mnndNI.
1. Federal Court. ""'776
DiRtnct court's grant of Rummary jurlg-
ment iR reviewed de novo. Fed,RulcR Civ,
Proc.Rule Sf/(c), 2R U,S.C.A.
2. Federal Civil Procedure C=:>2.t70,1
Summal'J' judgment is appropriate in fa-
vor of party that if1 pntitlcd a~ matler of law
to juclgrnC'nt in it... favor whprr prll'tic~ agr('('r1
that nil rnatprial fa('t.'1 arf' in di~p\lt('. Fl'd.
Rull'~ Civ.Pr'(}c.l{u!p fJfi(t'), ~H n.S.c.A.
3, Zonil12' and I'lanninl{ C:=>1.t
Zf)nin~ ordin:mC'f' that nPlth(>r hannl'd
nor imposf'd lIn.....arying lu'ight rf'!-\tricLion nn
amati'uT Tadio antf'nna.... \\'a~ not prf'f'JIlpti'd
on it<:. f:u'(' h.v Fl'df'ral (~flmmllniration~ (~orn-
mi~.~i()n 0.'('(;) nJling J'i'latinj.! to arnaLl'\lf
radio fai'iliti(l~.
1261
5. Zunin,R' nnd Plnnninlit ~1.I, 65
Cit.y'~ fh'('ilolinn flC'llyinJ.! 1II1111tPllf rmlin
IIpC'rntol"t-I IlJlplil'llt.inn for 1.llnillJ.t' \'lI!'inn{'(I III
rrl'd, liX---fuol rndin nnlt'nnn lo\\'('r. Illll! limit.
ing opf'rator to ('nnlinuin~ URe or int,rfrct.i\'{~
lifl.f)-foot antenna, did not reprrscnt rp3R0!1-
able &rcommodation of amateur ~ommllnica-
tions. ann thus city's zoning ordinance Wa."l
preempted by Federal Communications
Commission (FCC) ruling pert.ainin~ to ama.
teur radio facilities; city had no reason to
fear that antenna wouM interff're with other
frsiclrnts' r(~c('ptinn, npC'ralor addrpsg('d any
('oTlCf')"n for puhliC' HRJ('t.V, llny finrlin~ t11llt.
opf'rator ah-f':uly MlIrl'f'~Hrlllly I'nJ.!a~f'd in nm-
ateur communication~ wa.'\ lInrea.~onahle, and
concerns over aesthetics were undercut by
city's agreement to allow operator to main-
tain present antenna.
1\. Zonin,R' nnel Plnnninlit ~l.t
Frdrral Communicat.ions Commis8ion
(FCC) ruling relating to amntf'ur rommunirl\-
tinn~ r('(l'tirf'~ muniripnlity Rl'C'kinJ.! to l'"forrl'
7.onin~ ordinnnrp t.n Il('('(llllmol!lllf' I'l'n~nlmhl,\'
nmnt.I'UT rOlnnl1ll1i('utinn1<t, nncl d(ll'~ 1101. pl'l"
mit munieipalily :-limpl.v tu halam'l' it~~ inll'T.
eRtR agaim;t federal governmpnt'~ intE.'rf'st.c:; in
promoting amalellr communicationR,
7, Zonin~ nnd Plannin~ (;:::::>14
Requirpment in FedeTal Cornmuni('a~
tionR CommiRRion (FCC) nlling- t.hat city rea-
sonably accommodate amat.eur comrnunira-
tionR does not require city to allow amateur
to PTC'cl any anwnna shE' df\RirC'R; inl'ltcnd, it
rf'll\lirl'!'l only that. ('ity rnn~idf'l' lIpplil':ltilm,
malH' fHl'luul tindinl!~, lInd :lltl'lllpl to 11t'~()ti-
atr ~at.iRfal'l()r:\I l'onlJlrnrni."I' wilh npplirant.
R, i\lunicipnl Corpnrntinns ~;,:I
Zoninl{ nnd I'lannilll{ c=>t.I
Local Tf'gulntion that. impai~ nmatf'llr
radio cnmmlllliratinn~ i!'l pfl'f'lllpl('d a.~ ap-
r1it,tl h,v Ft'll..ral ('()mmIlTli('atioIlR ('(lllllllis-
silln (FCC) ndinj! Tl'btinj.! In anml(',.!' {'PIll-
~
.
()
1262
1:1 FELlEltAI. Itl<:l'0I1TEIt. 3~ ~mluw.,
.1
munkatiunti if city has not cruftcd it to make
reasonable accOTnmodatlon for amateur cum-
munication:; while using minimum practicable
reboulution nccc::;sury to accompli::;h city's le-
gitimate purpose.
;,1
John llollow.. St. Paul. MN. argued
lChristopher L>. Inlay. WUhhinb>tun. DC, un
brien. fur umicws curiae.
Eric J. Nystrom. St. Paul, MN, argued, for
appellee.
Before McMILLIAN. BOWMAN, and
MAGILL, Circuit Judge..
UOWMAN, Circuit Judge.
Pur~uant to its zoning ordinance, the City
of Ml'nllota Height:;, Minn<!tota, denied Syl-
viu Pt'nt.e1. un lllllUt.eur radio operator, per-
mi~:;i\l1l tll cruct u tiS-fmlt radio nntcmm tow-
er in her yard. Pcntcl then ~ucd the city,
claiming that tilt! zoning ordinance wa.'i
preempted by a Federal Communications
Commission ruling known as PRB-l, which
requires the city reasonably to accommodate
her amateur communications. The District
Court granted summary judgment to the
city, and Pentel appeals. Because we con-
clude that the city did not reasonably accom-
modate Pcntel when it limited her to the
continuing: use of her indTcctivc f)ti.f>-foot
untenna, we rcVel1iC und grant t;ummary
judgment tu Penlcl.
}~
I.
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~.....,.,.J;
",..,.Ii'n:.',
:~tilF''''''
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~:tr;I~:.ie
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{"";;i;'IL;
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: of. ,,~~,
i\.j:Fi;:.
Penlel i~ an runatcur radio operator who
u~e:; I'Udiu cummunicatiow; to .serve the puh-
lie intcre.st. After .she wu~ licemicd hy the
FCC in DCl'cmum' l~J~ tu operute un ama-
\A'ur rutliu 1~lld a Hlutiull from lwl' hOIllt!, hht:
iH~Iu.lh'd Illl 11\'1' rUllf 11 IJPrl.kul nulitl Illllt~IIHU
l. Pnlld':-, IlLUlJl,:".J ,1I1h'lllLlI \\Iul1l,llw lIUlll' d.
Ic-,.i\',' lli.1ll hn ,':"I:-.(;UI\ :....,I-ujlIOl !wn 1,'0.1'..111:'.
1'1I':!;1, PCllld':. ,-\lnt'IIL \'cni,'al Ulltl'lIl1.l JI~:'lp<.lll'l>
~igll"b ill .Ill dilt'l"\hllh, Wlllk her IllOJlIl:>,.J di.
icr.:titllli.-ll alllCllll.l wllulJ COl\!.;cIlII'iJ,tc allJ culled
~i~lIab, tilu:> 111'1..:..1:-.1I1~ hl'r ;.IuililY IU 11'<.lIL:>lllil
i.lnu ICl-,'lH' ill ... ~p,...:Lll!.: Jin:...tiull. S.:cunu, .III
i.l1l1":lLll.l'S dk..:ll~'Cll':~:' illllC.lSo.:S With il~ 1ll..'I~hl.
PClll':!''' l'~I,>lllll:: JlIteJII1J i::. tJlud...:u tJy IIt'e::..
IIl:r talkl II:plJ""'lIlelll .lllt':lI11a. Wlil'll c.:AI....lIl.kJ,
would bl' '-It lJl 1I1';J.lllu.: lOp::. 01 nCi.lrby IIC":'>, Ihu:>
illlpIU\'IIIj,! h,'1 ~1~ll.l1 II ;.111:>1111::'::'1011 allll "c~:l'pliun.
thut reuche~ a heighl from the ground (If uti."
feet. Ov~r the next two year~, Pentel was
unable to etltabli~h reliable radio communica-
tionH with other amateurs acrmiS the Uniteu
States, and she was able to establbh unly one
internutional contact. Pentel concluded that
her existing antenna thus Wati not adequate
for domegtic, much less international, com-
munications.
.1
"
,
Accordingly. Pentel began pr~paring: to in-
stall a more sophisticated antenna. The re-
placement was to be a retractable steel tower
that mea::iured 30 feet when lowered and 6M
feet when fully extended. Thh; tower. which
P~ntel planned to have installeu prufessional-
ly in accordance with its manufaclurer's
tlpeci1ications, was to hav~ mounted on iUi tup
two directional aluminum antenna.:;.1
Pente! wa.'" unaware when ~hc imiwlled her
urig-illul untenna that Hhe WID; vihlaliug' Uu:
citY'H zoning urdinance, which Iimitn ull t1truc-
tureM, including r;.ulio antenna.'i, to a height of
twenty-five feet.2 While preparing to install
her new antenna, Pentel became aware of the
city's restrictions, and in January 1991 she
filed for a variance pursuant to Mendota
Heights, Minn., Zoning Ordinance ~ 6.5
(1981).
The city evaluated Pente!'s application
thruugh a planning: report prcpared by a city
Mtuff membcr, u.nu at u vlauning cummb~ion
meeting: and two city council Ulccling::1. The
city then ticnt Pentel a letter in February
1991 telling her that her application had heen
denied. The letter did not state any factual
findings, re~ums fur the denial, or what Pcn-
tel eLluld do to guin the city'b upproval. In
an attempt to uffer Pentcl a rCaHunaLlc ac-
cUlUllludatiun, ~ required by I TL -re J-'t:dauL
l'n'I:IIt/JtlfJlt uf State uwl LIIl;ul Uryulutioftx
!'rrflltltill/J to (l/11ult:ur UwLHI FfLC:iljtu:tI, 101
1. T[l~' p.lIll~'~ [,ilkJ tll hUIII~h 1111:' ellulI" \"1'_\1
III q KBA{ II "I Ill,' i\1l'l1UlIt.! IlI-ll;lll:. (Olllllij III UI
1Ii.ll\ll', "H1J \Ill: nly .....u:> 1I1l.lhl.: III hlll1l~h a u'l'y
Wb":ll \'I1111i.ldCU by thl!'> CU1I11, We Ju nul plll::.ue
the l~:-'UC. hu.....,.v..:r. UCL.!tl:-.l: Ih,' p<.lllll.... .!~I"C;,
i.IIlJ ill..: Ui:.tlld CUllII IlJUlIJ. lli.!l till!'> ~u tHIIl
Illlllt!'> 1"'llld':. laJlIJ .llll.:lIUJ !I,wer \u .I I11J!l.I'
mUIIl hCIj)llt III 25 kct
~
~
f
~
!
,.~~"JY-:'~J,}" /.?itijl!;,:"- ~';"'''~~''''N ',.... "';1/",.1 .l'\ ~ ;:'~~~t.J' ~ .~.'- "~'" .:.~ ~~'. .,.,~ ' ';~W" ~!;:'l ", ,.~r' ' >'~-'J?' _t. ~ ~ ij.,,;, r." ~ " ". " .., .... "- .',., .
~1t~~iiTri~:f~;'~\;!~~~;.t!~!~~~;fi1ti~f-!!~{,,~tWr;;I~~\~':1~11t.!~1~~J~~~~!t1f;~~g~j.l1gi~i;\~~Sf:~~~1.tfi;;,~.i,;(;~:l~lf~~~jJ1\;Wli;~i?'(fli'r<:-!'I~~-J~}~
Jt~'~}~it~!mr1'ii~;1~mf~i$1Q~~~~~}01~?~lt;ll'f;;!1~~ql:~1~~.~~I~f~~;,\~;~M~~~~;i~f~8~1ft!1~:);,.f~~,\!!!.!'\.{!4Wi:V;j\!:w~.:;,;~~:~t",f;~~;'{~;$tM?'
.jiii;~.lft,:'~l':"'~r' '~l~?~~..~~~ .j;~'J' ,'f '... \ .,'" .' , 'A,"'''''] . - ~"::f1~''''''''''':-',''''C'f'''11'1~''I;;,,~;,~,'+~.~S~I~~''
~.~~_'., .,~'(>_.., ,-,r;;H"om~~~"!~.$o:v~;n"Jl~--il' -l, . ' ~.\,.c'''~I~':~
~}.t.., - . ' -"". " 'I." ';'-' ," '".. ,-', ' \fit l.\\~,~.:t
l''l'':'''':'''l"t
~jt~:':,;:
12fi:l
PENTE!. v. CITY (11' MENIlOTA lIIm:IITS
Clle..U 1'..111 1161 (Rlhl'lr. 1994)
.Il
..
F.C.C2d 9,,2, 50 Fed.Reg. H8,8\H (19M) (co-
dified at 17 C.F.R. ~ 97.1,,(e) (1992)) [herein-
.ner rlUl-ll, the city council wanted P!'nld
R Hpr'cial-m-l(' pprmit that allowed hPT t.o con-
tinue' IIl'dng her f'xiAtinp: nnt~mna, which ~h('
had cTeclC'f! in contravl.'ntion or thf~ cit..v's
zoning ordinancf',
r,,"14'1 thr'n n1NI fotllit. n~llinl-lt. t.he' rlt.y in
,t.hl' r )j",tric,t Cf)urt" r111hnhlJ! thnt !.II(' ('jt,.v'!4
OI'dimUH'(' wnH prl'(Ompl.roc! h.v rUH..1 in thnt
tnr city hall not. rf':11'onnhly Rccnmmnrlatf'd
h{'r, AgTC'f!ing that tn€'re were no e1i~put~'d
iAR\I('~ of matt'rial ract., PC'ntd nnrl Uw city
hot.h IlIOvf'cI ror flurnma1"Y jl1c1wnf'nt. Th"
Ilir.;t.rirt (;llIlrt p:rant.ed summary j1ulJr...'TT1f'nt. in
favnr of t.hf' city on all c1nim~.:1 Pc'ntc,1 RP-
ppal~,
a-
..1
'0
at.
,tp
'11.
in.
1'('-
vl'r
fiR
ir'h
ml-
'r'!o\
top
II.
111'1'
1hf'
11,21 We' rl'vlf'\V ell' nllvn the' fll~trl('t
cflllrt.'~ hrrnnl. of !"llmmary jtlcl~nll'tlt. 1!uikd
srn'r~ rx rd. Gln.s,~ t'. MC'rltrrmic. Inr., fI!j7
F.2d 60", 607 (8th Cir.\992). Because the
parties agref> that no material facts are in
dh~pute, ~;ummary judgment is appropriate in
favor of tne party that if> entitled as a mattpr
of law to a judgment in it.<.; favor. See FeeL
R.Civ,P. "r.(c); Celntox Co,.,., v. CnfTrft. ~77
U.I'. H17, ~22-2H, H2r.. 106 S.C!. 2,,1R, 2",,2-
1;.1, 2",,1, 9\ L,l';d.2(1 2r." (19Rr.),
CnH('~ l'l'ntf'ring' on 7.oning- rpJ..,"llalion~ g'llV-
erning amalC'ur raelio antlmna t()we~ prp~enl
a unique l(>n~ion among the vanou!-\ parties'
inv'r('~tfi. On the onp haml, a local munid-
p:llity, through th(' ('xerciRe of it~ traditional
police powerR, may rpgulale the hf'ighl and
placf'mf'nt of radio antC'nna tOWC'nI {'rf'<'t('d in
rl'!\idl'lltial c1i~trict.'t A mllnicipalitY'R moti-
vations for !-IHrh rPh"llatilln inrll1df' th!' pnssi.
hilili('~ that an anti'nna may hlo('k Uw linl' of
Kight of }l"fk!-'hi;1n~ or drivf'rR; ('onst.illltf' a
prl1minl'nt f'.Vf'Afll'f' lh:\t llhm tllay int('rfl'I'"
with a s('enk vii'w; fall nil TH':ll'h.\, n'sidf'tlt'l'~:
Of dp('t'('a~(' prllpl'rty \:ahl(,~.
Amatl'uf radio npf'ralflfR, on thl' ot.lH'f
hane!. plainl.\' have an int(,!'i'st in tnailltaillil1~
M1C-
lt of
stall
, the
she
dot..'l
~ n.r)
alion
\dt,y
l:-:~i(ln
The
ruary
I heen
aclual
!.l'pn-
11. In
,Il~ I-I.r.
I,(/(oml
lI'i()m~
".>1,1111
;1 LOpV
'OJ'. nidi.
, ~I u,pv
'jlllr..,III'
;1~'nT,
....I'llClO
1 maIO'
3, In addiliolllO her pret'mrtion dl;dlt-nr:l'. PCllll'l
rai"l'd ~'arItHl" "thl'r Iflll"litlltional I'h;dkn~o.:'
lh;ll ,Ill' n,,1 l('nl'\~TJ here
4. !'!"Ilter, ari-!lImeot lhal till' lity'" (lrJin:ul(l' I'>
vnid l(jr V.11!\\t'nl'"'' j" withoul lnlTil ....-n. A-of,''''
C:E.'
~L' '.'-
0',::'"
succe~~ft11 amateur communications ami in
RURtainin~ a ~tron~ nfltwork of mdio 3ma-
tCUrR, Thr fril('TaI ~o\'f'rnmf'nt'~ int('re~ts
Rr(~ l\\i,gnl'd with thORP of tht' l\nHl.t('ur~, rtlr
nmnt.f'lIr raclio vnhmt(,f'r~ llfrnrd rl'Hahh'
emprg-I'ncy prC'p:u'l'clTlf'R~, nntinnal ~f'(,tll'it,\;,
Rnd cli!-la....tl'r rrlipf ('nmmllnication~, R('('llllSf'
thc'rl' iH n dire'd, t'('l'l'f\lnlion 11l'lwl'('1l nn I-I.lnn.
t,l'nr'!o\ nntfll1lll1 11l'I}.!ht. nlld 1\1'1' nhilily ~IU'('P!ol!-t-
fully In trllll!4nlil, lllH1 l'I'('I';\'(' nullo !'l-iJr...'tllll~,
f(\th'ral inl,l'rI'Hts Nf(' f1wtl"'I'1'11 when IO('l\1
re~'111aUnn~ fin nnl unrltlty ff'l'It.rict thn erpc-
tion of amah.tlr rat1i(l ;lOtf'nn;\R.
41h(' Fr:C \Vll!' nt.t(1ll1ptill~ tn rr(rrf'r Ihe'
trnsinn hptv."l'f'n thf'1'I1' intf'rf'~t~ whpn it is-
f\uC'cI PHB-1, in whi('h it. atlf'mptrrl "to fltrik('
a halam'p l)('t\\'I'(,1\ t.he rpdl'l'al inhlf(lst. in
p,'omnting lImatpllr npPI'lIliom:. nnd thf' l,,),..rili.
mllll' int.I'I'I'~tH ur Inl'1I1 Wl\'l'l'lllnl'lIl~ in I't'~"l.
Int.hlA' 111('111 i.OTlin~~ 1Il1l11('r~." I'Hll1 11 ~~,
Anf'r wlq~hiTlJ( loclIl, fPth'ml, lUul 1I1l111h'ur
intf'l'l'st..co, tht, FCC iSHUpd a ruling- thai haH It
limit-efl preE'mptive efrect on local regula-
tions. See PRB-\ ~ 21. The federal courLq
that have addre~sed this roling have upheld
it.c: prE'emptive effect. Srp, e.g., El'rllls P.
Board of County Comm'r~, ~l91 F.2d 7!lfi,
760-<1\ (lOth Cir.199H); Than", J!. Cilrl of
IAlkf."irlc I'arl', Krl.. 779 F,2r1 1\R7. \lI~S~~!l
(r.th Cir.\~Rm (per cm;am).
rH I CnurLq llppl;'in~ PH B-1 hll\'e (lis-
C'crnflr! two 1111'l1n~ iI.v whkh rHH-t IlIl\Y
preempt. a local ordinanrp. FirRt., the local
regulation may he prpemptf>d on its facl'.
The city'~ 7.Onin~ orflinancC' dop~ not connirt
on it..... face \\ith PHn-l hpcausf' it nl'it.hl'r
han~ nOf imr(l~('~ an lln\'ar~'inK h(';ght rp-
~tridinn ('In amatl'lIr radio antpnnaR. S('('
f;I'r"'.~ I'. H(J(lm (~( ('OI/IIfll ('fim",'r.~, 7;12
F.Sllpp. !17:1. !171i-77 l1U'oln.I~I!IOl: HlllI-hi.If
11. ('ifu of ";dmntld.~, liil F.Supp. 1~7n, 1:!7,\
(W,I).\VII~h.1!1.1.(7).1
-::,1';:,
,'-.-','
'if.
~ri]',H;
\;:]~:. :; , , ~, ":'
WI;,,: '
:~jj~<';:
~."'~ ~-.' :
j,;)~\,.,
~~,;::;:. d
~~:;',
~:~1~~- ;'~:."
~;'~i\c,
i:<'-:"~ ,
;i~t,<:
'",'1,-.'
~~:"!
~~\R
.!h"
~f,~:.:r:;
Vi'!'.'"
~jt~:"~(
...,jl,'"
"pi.."
~f:t
'7<'-"'/"
"":':,1,
t,(;::"
'''~'.'r
~t~J.;;
',l,-'~:'.l
a""
t~:h
~~",,\'i
J):.,~,l
~6,
~}\
-i~l.
W".. .
q"i':.
'r/!'"
1dv;
~;i.'
~',~}~
~;"~.
t~~
~:;.
~.~
~.
;>1:
'"",
,.,(.;.'"
1,1.:;1 SpelllHI, I'HH 1 :lll'ltl pl"'I't1\pt.~ a
7,onlll~ flnlin:UH'I' th:\l a {'iLy h:L" nol :l\lplil'c1
in a mannE'!' !hnt rl':l:,ollahly :In'llmmndall's
amatC'lIl' rOllllnunicatllllls. ,..,'"" I~'/'IIJ/.o.:. !1!1,1
,!.'r 1'_ f.iIIl'''H1. 461 1l S_ 1"2.1"7 ."K, 10' STl
11\',", 1!I~R--"4. 7<:, LEd 2d '10' 114"Q. Urll1dHl\
\. ('if" Il' ('p/rOlr}.w. 'Jill'> F2d <J',lol. <JlJ~ (~lh
fir l(Nm
~ .
\~ ~
..
.
o
'"
Wi4
13 ~'EDEI(AL REI'OUTEU, 3d DEitiES
e
t;i
K
.it:.
,~tt;
."",..
~:~%~.; i
F.2d at 71il; MacMillaa v. City uf Rucky
Ri,,,,,, 74M F.i:iupl'. 12<11, 124M (N.D.Ohio
19UO). The FCC refm;ed to specify a height
beluw which local govcrnmt-'n18 could not reg-
ulate, and in:;tcad dedared that "local regula-
tion::; which involve placement, screening, or
height of antennas ba.~ed on health, safety, or
Iwsthl'til' cOIl:-;itlerutions mu~t he crafted to
Ul'l'Ullll1llltlulll I'cu:;onuhly amuteur conulluni-
,'ulltHlto, nlld tu 1't.\llI'l'ttt'llt thn minimum prul'-
tkuhlt' n'~ullLtioll In ul'Cllmplil'lh the luculuu-
thol'ity'.s It'j{itimate pUl'pose." PHB-l ~ ~5,
"~':'
'~i;j
:-.~~J-
',)"
Ltil lnitially, we mU:-it discUMS lhe extent
to which this lanb'Uage rctluires munidpali-
tics to yield tu amateur interests. Although
sume l'ou~ have evaluated whethcJ' thc mu-
nicipality properly balanced its interests
against the federal government's interests in
promoting amateur comIllunication~, see
n'illiulIIs I'. City I{Culumbia, WG F.:!tI U~H,
!J!)~ (.lth ril', HJ~IUl; MIlI'AI illu/l., 7'H'i ....::;UJlII.
ut 1:!.11:"1, We read PHU-l l~ requiring mUHici~
paUtie:s to do IHllrt..,-PHB-l ~pecitically re-
quires the dty to accommodate rea:;onalJly
amateur communications.a See Evuus, 994
F .2tl at 7ti:!-G3. This distinction lli impor-
tant, ut.'cau.:'Ie a staJUhml that requires a city
~o accolllluodute amateur communication::i in
a I"t'aSOllUule fa8hion is certainly more rigur-
Oll~ than one thut .:-;illlply requires a dty to
hululll't' 1111'111 lIlltl fl'lIt'rill iHtt~n'tob wlltm <le-
ddlllK wlll'lIwl' tll }Il'rIllll U l'udiu UlltCllllU,
, ~
.:
, .
11.til ^11lllil'lItitlll Ill' lllb n~u~(lIIUllle uc-
CUIlUIIUllatioll :;lulldllnl, hllwtwt~r, doc:; not rL!-
quil't.' the dty to aJlllw the amateur to erect
any antenna :she de:sires. Instead, it require::i
only that the dty "cunsiderl ) t.he application,
malkJt;o factuallinding-s, ami attemptll to ne-
gutiate a :satisfactory compromi$e with the
appliL'ant." Huwurd v. City of Burlillgwne,
!I:n F.:!d tnli, lal'iU Wth Cir.WUl); ;lei e.y.,
f;I'(/JI.~. HU.t F.~d ill 71i~ (stilling- that tlH~
l'llllllly WilS wlllill!!. III 1lt'r1nll a lTilllk-ul' low-
:';~;.j; l:, ;
.'J"~.l
~~l.
'';':';1
Ij'~, :
.~.~<;~ '
_1,-,
;.."r.
I'i.
~
i;'-
1:~, ,','
1 '"
~
,
5. AI \;'.111UUS p1...I~I.-'~ in l'I<i1"I, 1 hI.-' FCC ~I.ttn
Ill.11. III Ulll~IJlTIII~ Iii..: b...U": hdUlL' it. il wL.IgIH.:J
kJ~'l.d ,IlIJ ..l11\,lll'lll "1'L'I<.IlUI' illh.Tl'~l"> i.I~i.lllbl
Ih,,~..: ul 11l~;'IJ h,!\'.:nllll.:llb. AltLT h.d,ll1~'lllg
lll~.~"" 1llIl'll'~h. Ill": ~I.llld.lId lh.J1 lhl' FCC lUll'
dllJl.d \\,1:> .IPPI"pll.Lll' \\,1:> lh.lt.J IO~.J1 WI\L'lll-
1l1~'llt 111I1~1 I (."""lI,,(,jv .".L"III1\I"d..l" .Llll.Jl':UI ....-
Jhl lOllllllllllll.IIIl/ll" ........ I'I<B-I ~i'll !~, !4.
er, a shorter tower, or a tower located else-
where); Wiltiam., 906 F.2d at 997 (stating
that the city suggested a limitation on the
hourH the antenna could be extended, and
noting that the amateur could apply for a
shorter antenna). Under this approach, a
local reb'Ulation that impairs amateur radio
communil'atiom~ iH preempted aM applied if
the city hUH nut crufll:d it "to accommodate
rCHliUlUlbly umiLtl~LIJ' CUllllllllllil'utiulIl'I" whil(!
utling "the minimum IJructlt~uble fl'gulllliulI
lUt..'CCtiMaJ.y I to uccompli.sh the local authuli.
tY'H legitimate purpul:l~," PHU-l 11 ~rl.
The city illfunneu I'enl.cl that her applica-
tion had been denied via a bare-uone!:> ldrer
that did nut. list any haKes fur the denial.
Because the city council failed to make any
factual fiJldingti,li see White Bcar Rud & Glm
Club v. City uf Hugu, 3MM NW.2d 73~, 742
(Minn.19~6) (holding in a case revicwing- a
tity cuullcil'ti denial of a :;pt~cial-usc pUl'IlIit
thaL u cryptic IitltiuK of rcasullli for the dellial
did not constitute factual fil1ding-::i); VUlt-
I.umJ.:;chuulv, City of Mt:llduta /It:iyhtli, :titi
N.W.2d 503, 509 n. 7 (Minn.l~l>3) (.tilting
that variances and special-use permits are
treated identically on judicial review), We
need not comdder whether, if it had, such
findings would be atl'ol'dcd preclusive effect
here, lice U"i-vul1it/J of Teull. Lt. Elliutt. 47~
U.S. 7~, 7U7-~IH, lOti ti,Ct, a~~o, a:!:!fr~~7. ~~
J..I':d.~d liar, lIllMli).
AlthulIl{h the dly t'ailed tu make allY fllclu-
ullilldillgli, lhe 1'11111Uillj,{ I'qlurt uwl hl'iH'illgti
SUg~l~~t fuut' putential jUHtilkaliuntl fur till!
city's denial uf Pen tel's variance application,
We now turn to those justificatioll:;, Fir~t,
thc city had no reason to fear that the ant..t:n-
na would interfere with other resident..;' tele-
vision and radio receptiun; the city's plan~
ning repOl1. ~t.ares that Pcnt.el wa.... prohibited
by the FCC from causill~, alld that :;lte l'uuld
lose hl'r 1ll'I.'Il~l~ if hhc fuih.:d tu t;'OITCd, M.lt.'h iJ
Ilrullil'llL
th
th
1',
er
CL
th
ifi
cL
I"
1'1'
W,
I!.
tu
ell
p,
tb
cit
re
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C.'(1i
ap
JJU
co,
ad
tel
tiCl
to
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III.,
UIl
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of
ti(J1
m,'
cun
ext
ind,
tu j
tIll'
t i ~ r l:
b. Mt.:IIJlJt.1 Ill.lghl~, MllIo_, ZUlllllg ()IJlll..I'~":
9 S5(S) (l'Jbll ~L.JLc~ Ih.Jl tbe LJl~ ~UlltlLd'~ ..~
lioll III (kJl\'illg .J ViJrhlllL': .Jpplll..ll"n "h..liJ
t.:UII~tl\lll~. .J Il1lJIIlg ..llJ Jdelll'lll..I..,11 I,. tl'L
eil\' ("Ullld lh...t Lh.: luILJ'lh'll) 1''1,,1/,.1 1"1
'LI'IHtl>,d dll llul l'\I',1 filL) ~'''L~ld.''!I' 1,,1,
J:::ll,'~'l- d",.." 11l.L 11I""f.k .J lUlUl \\It1. ...... .I", LI
11ll.lll~,!, nILrrll~.I.JI..:J l..dLl...IIII'U"''':~ I" .....l"
TII..: lll:-- 111..l) Ii....: Illonk 1,'ltLI..l1 IH'U"'I'i'> J.ll Ih
PUlllU"c.). bm IL b.J:O Ilut ("1 "Lll'
llll:-o
IUd
l'all
cha,
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pen
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PENTEr. v. CITY OF MENIlOTi\ llEIWITS
Clcu",l.\ 1:..'1112(01 IflthClr. 1<J94)
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Second., the city expressed conccrnfi nbout
the tower's Rafety in light of the fitrong' wincl~
that frequent the MiRsissippi RiveT valley.
Pentell'reRented to the city the manufactur-
er's spccificationR, which rate the t.ower Re-
('UI'(> in eighty-milp-per-hollr winch:, AI-
thou~h the city generally rc1if-':" on Ruch RpPC-
ifictltinm; producer! hy manUr:-ll'tllrcr~. it de-
c1inf'r! t.o dn Hfl in t.his (';\."1". In mlclil.ion, Hll'
tow"r wnR ret.rad-ahle, unci the city could
require Pentel to retract it whenever had
weathf'r threatened, Moreover, the city in
19R7 alloweri a ncarby amat.eur radio opera-
tor to erect a gimilar tower, amI that one was
c!ofiPr to the operator'!' property IilH' than
Pentel's W3H to he. The record bpfore us
lhw:j doeR not cstahlish a factual ha.~iR for the
city's Rafpty rOnt'f'rn~.
Third, fill> dt.y 1'Iu_inlt\ t.hnl It. hf-'lif'\,pd it.
rf'Ilf4lmll.lly IU'(,lllnmrullll('fl r'l'IlII,1 1II'('II'I~\('
flhll aln'url,V 1411rc'I'R~flllly f'n~;ll!('~ In nlllall'ur
cnmmuni('atillnR, Pl'n1.('1 f:lllllnittprl with hc'r
application a letter of commcndation for hcr
puhlic sel\."'ices. The city's planning report
concluded that thi. letIRr demon.trnted the
adequacy of Pen tel's current antenna. Pen-
tel has pointed out, however, that the puhlic
Rervlces cited in tht~ letter were not related
to th(~ am:Itpur commllnications in whirh she
f'ngagC'rl from hf'l' homf'. In fart, t.hl' If'tlf'r
makf'H it rll'ar thnt. thro Il1l1l1t,I'Ur ('onlll1unir:l-
tionR for which l'enld \\'a~ 1.0 IJ(~ rOllllnpnc!l.c1
were conducted at the Air National Guard
base in MinnC'apolis.
In addit.ion, the mayor ami SOIllP mpmlwrs
of th{-' ,'it)' (,Ollncil indil'Jlif'd in UH'ir lkpn~i-
tinfl~ t.hat l.h,'y ('llndudf'd from Pl'llld':: ;.;l:lt('-
nJf'tll.<;. at till' hf-'aring!-; that. ::hf' :iln'ad,\' W:l!-;
r(]mnllll1il';lt,ing I'fff-'rth'f'ly, alll('it, not. to th('
!'xif'nt !-il](' df'~il'f'd. Till' hl'al"iIlJ~~' Illirwll'!-I
indil,:ttl' that 1'r'lltI'1 ~t:ltf'd !hat. ::Ilf' W:l!-; ahl!'
tll rt'ach only !'Jloradically \'ariou~ pla('('~ in
I,hl' llnili'fI St~Lt.f'~, alld that 111'1" ('llITI'n! :111-
ll'nna did !lot allow rl'liahll' I()ng.ran~p tr:\m~-
mission:--. \V1wll prllmptf'd, hpr attorn/'y re-
luctantly altpmptcd tn quantiI'.... the communi-
cations: h(' rh:lI.actt'nzt'd Pt'ntpl's current
ehanel's for making C'ontart at .10 l1I'rl'l'nl.
and pslimated I hose ('hanel'S at. Hfl II! !)U
perr(-'nt with L111' improv(-'d to\\'l'r. Thl' ('on-
If'xt of t1H',<';1' l'f'marks anrl rf-'ntJ'I'~ nthl'l'
!'tatf'mi'nts indi('atp tll;lt thl';';l~ chanel'S Ill'
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SUl'l'e:-1S refcrred to clomf'stic communications
only.
ThiF\ quantification of renters ahility to
communirate wa.~ thoroug-hly mischaractpr-
izrcl hy the mayor at his deposition, when' he
fl.tatpci that rente] wa,q able to ('ommuniratR
world\\;de HO to 70 pf'rrpnl of thp timp, hut
that !'h(> wnnt.f'd to havr rrliahlp worldwirlt\
communicntinnF\ 100 !lrrc:"f'nt. of thp timC'.
One city councilmcmb{,1" under~tood Pt'nteJ's
st.3tement..~ re~ar(Hng hpr tram~mi:::.sion suc-
cess, hut others dE'mon~t,rat{'ri a fuzzy under-
~tanding, at hest. of Ppntpl's situation, Al-
thotf'g'h what constit.utps "sucre,<;~ful" arnatl'ur
communications is difncult to quantify, t.he
c"idf'n('f' in till' I"pcord dol'S not jll~tify a
finding' h.v Ill(-' city tlml ppllll'r~ nld lIntl'TII111
f'Tlilblf'd hpr "RlI('rt'~Rflllly" 10 1'1l~a~p in lUllll-
IA'ur ('lIl11lllllllh-alloll1'(, llllll Iht' dly \\'ll~ ll11rl'll-
~lInahlf' if it. ~n found, ()II I hf' I't'('ord twflll'!'
ll~, thp ('ity'~ fil"fo:l thrl-'t' l'(lrll'rI'nS I:wk f;wtllal
f\Upport,
The city's la.~t reason for denying P('ntpl's
application, that the antenna tower would he
unsightly, rest...~ on subjective cnnsidt'rations
and is difficult for a r('\'it'\\;ng l'ourt to pvalu-
at(', This 1"f':Json is lIndeJ"{'lIt, howl'vt'r. hy
thl' ('ity',<; \\;lIin~nf'sg tn allow rt'ntl'l 10 kf'f'P
hl'r prps('nl rnnf-llIollntpt! Hlltl'lInn, which
rl'll('hf'S lL hl'i~ht. only ~li)~ht\y lu,llIw Ihat {If
hpr prnpospd antenna tmwr, and hy t1w
city'~ allowancc of a similar anh'nna tOWf'r
nearhy, \\I"p acknowll'dgl' th(" p(l~~ihl{' :U'...th-
(,tie c1ifrl'I'pn{'t' hl'twl't'n :\11 :mll'nn:\ tllWl'r :lIld
a !"ouf-lllounted antl'lIna, hilt llwl.f' i:-l nil indi.
ration in till' I'I'l'ord thai tlu' l'it.... attl'llIplNj
to liTHI ;lny rlllllJmll1li:,,1' Ill:lt \\'Clllhl h:I\"I' ;1('-
1'lIllll11nd:lll'd 1'l'l1tt'l\ :1111:111'111' l'orl1lnllni(':l-
t.illll!-;.
Thl' city'!, df't'i::inll to 1:1':1111 a \.:ll"i:lIlt'I' 1 h:lt
allow:: l'c'llk! tll contilHll' lI:"inl! a \\ holl,\. in:l<!-
equate antenna d(l{'~ nul ('(If):,,tltull' an ;l('('l.m-
rnodation in any practical :'f'n::l'. r n addilIoll,
hpcau~e the city did lIot rt'a:-:onahl~' accom. modate PI'ntel, it o!1\;flll:-:l,\' did nut ll~t' the
ll'a,<;t rl'~tl;eli\"P nH'an:: avallahle to nu'pt it...
If'j..'itimat(' 7.oning- IHlrp(l~I's, Wl-' llwn'fnre
hold that t.he cit....'... 7.onil1~ ordin:lncp as ap-
plipd in lhi~ (':I:-:e i~ prpt'mptl'd hy PitH-I.
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13 FEIlEltAL HEl'OltTElt, :Jd i:iEIUEi:i
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Wt~ e..xhul't the parties to wurk togcther III
ulTivc tlL a lmti:;fw:tury ~iOlulion to lhitl con-
trovcrsy. PltH-l l'CllUil'Cli the city rCUt\UIl-
ably to accununuda.t~ Puntel'~ n~cds as an
amateur ratliu operatur; what i:;; alluwed hi
the "millilnulIl practicable I'cgullLtiun tllcCt~H.
tIoury) to w.:colllpli:-ih the local uuthority't'i l\~hrit-
ilHuttl purptl:-ll'," PHB-l'l :Ul. The llil':lLl'id.
Cuurt's ~rulit of SUlUllUll'Y jutlgment tu lhc
city i:; 1"l!\'cl'sl'd, antlthc n.L....c i:; remanded tu
thl' Dbtrict Cuurt fur the clltry ul' sUlIlmary
judl-,'luent in favur uf Pcntcl. Our decision
docs not mean that the city neces:;arily mm;l
b'Tunt Pentel'.s application as it now stands,
but it does mean that the city must make a
reasonable accommodation for her interests.
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o ~ U, "'UH8IR ~l$nM
T
Urian KEENAN, an individual resident of
the Stute of Minnesuta, Appellee,
v.
COMl'lITElt ASi:iOCIATEi:i INTEH-
NATIONAL, INC., a foreign
\'ul"l'urutiun, Apl)cllunl.
No, !):~~J2li 1.
United ::)tatt~S Court uf Appeal::;,
Eighth Cireuit.
Suhmitted June 1H, 1993,
Decided Jan, 21, lUV4.
EllIpltlj't'C hroug-ht al'tilln cig-ainst former
t.:llIphlYI'r fur tldalllatiun awl frauduh'llt mb-
n'(lrl'St~ut.Llitln. Tilt' llnitl'd St.ates Disll'il'l
CUlll't fllr till' Disu'ld of MilllLc:iOta, ,J. Earl
(~udtl, Unitcd Slall'~ Magbtralc JutlJ!,c. CII-
tt'n'd jlltl)..;llIcnt tIll jury \'t'l'{lid fur 1'lIIpluYl'e
IlIL dl'!':ulLalitJII and fraudulvnt lIliSl'l'lln'senta-
tiulI l'j,Lilll:-), allll fOrllwr l'lLlPluYl'1' apPt'alt'd.
TIH' COllrt of ^\lpl'o.lb, I LlllSCll, Circuit
.ll\ll~t" IIvld that: ll) !'vllh'lln: i"'tUppudt'(t
Iindllll! th;lt t'llll'lu)'I'1' did !lilt lJaw qllidtl"ll'tl
pn\llt'J!,\' aJ..:ilill~l ddilllL:Llhllllla111illy; (~l t1d-
umation danmg-es were not l-':o{ce~sive Of un-
tiUlll'Urtcd hy evidelll'c; anti (:I) I!viclcm't~ KUP'
ported timJing of fraUllull~nt mbrcprcscnta-
tion tla~cd un 1Uitirt~llrcbcntatilJOto l'egur(lin~
jub qualification:.;,
Affirmed.
1. Federnl Court. $>776
DUitrict cuurt'::! denial uf motion fur
judgnwul a~ muttel" of law i~ rcviewcu de
nuvo w:;ing tsal1le tilatulanh; a.... diHll"id court.
Fed.ltules Civ.Pruc.Rule 50 note, 2M U.i:i.C.A.
2. Federal Civil Procedure ~2126.1, 2608.1
Judgment as matter of law is appropri-
ate only when all of the evidence points one
way and is susceptible of no reasonable infer.
ence sustaining position of nonmoving party.
Fed.ltules Civ.Prue.Rule GO "ote, 2M U.i:i.CA
3. Federal Courts $>763
Where basis of motion for new uial i::i
that jury's verdid is against \\-'cight of evi-
dtmce, dh~trict court's denial of mution is
virtually un~sailable on appeal; key ques-
tion is whether neW trial ~huuld have heen
granted to avoid miscarriage of justice, Fed.
Itules Civ.l'rodtule uV(a), 2S U .i:i.C.A.
.J. Lihel ullll Slunder ~ lU H ,1)
Untler Minnesuta law, qualified pri\"tll'gt~
frum liability fur defamatory ~latl'lIlenls Cfl-
COUlpas:;Cti twu-titep approal:h: defendant
must establi::;h exi~tcnce uf privilege, and
then burden shifts to (Jlaintiff to prove that
defendant abused privilege iJy al:-tual lItalice.
5. Li~c1 and Slander <?111H1J, 1~~(S)
Untter t-olinnesuta law, to t':'itahli:-h t'xi~-
ll'lll'C of qualilied privileg"l~ 1'1'0111 Iialnlity fur
Ih.famatury sLalt'lIlt'Ilt.", clcfl'rulalll Ill'al";" 11\11'.
den uf prtlvillg" clllHlIlUnii.:alloll wa,:; Illade
upon propL'r ol,ca....;iun, millk fl'lllll \1rlll'l~r pur-
pose. and ha......ed upun rea,-,oll,tldl' ,lIld Ill'oba-
IJlt~ ~rllulld;-,; prll!ll-'r purpo;.,I' l~;.,lll' <JIlll prop-
('I' un'a~llHI i~sUt' <Jn' ,llwOl.\";" qUl'~lLlJrL-' of law
r"r l'OUl't III dt'l'lllt-, wILdt> n';l~lltl;d,jt, allll
pl'obalde /..:TtHlfltb i~~llt~ L;-i J..:1't1crally '1'1l'~tllJll
of law fill' clJul1, Ulllt,~~ ~\Llil-Iln' 11\'l"llllt~ tiC
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FILE COpy
RECEIVED
NOV 0 8 1994
223 Diviso Street
Tiburon, California 94920
TOWN OF TIBURON
PLANNING" BUILDING DEPT.
October 29, 1994
Grant Pritchard
DOC San Francisco Seedon
106 San Carlos Way
Novato, California 94945
Re: Your letter of October 25, 1994
Dear Grant;
Thank you for your letter of Ocrober 25.
I ,,/ill set forrll here the historY of this mauer, which is not reflected in
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the mate~ial you have received that origin:uecl willi MI. Samgiss.
Inteiference Limired to Samgiss Television
Mr. ~"mgi,s i, the l,nJ;: neighbor who has experienced TVI or other
interference. I likewise have a te1evisiOll set L."J my ham shack, which has
never suffered any sign of audio i.nterfercn'~e, f1ickeTing signe.l, or other
problem. There is simply no truth [0 ,t,e elain, t.b:u my signal is being drawn
into Mr. Samgiss's house on the cable feed.
I sper:t seve!"allL:i.'ys wo'kiilg 'Jil \1r. Sit:ngi::s' television fJroble::n in an
effort to be a good neighbor and a rc,;ponsible !Jaru ;:;;tiZCll. He bad
complained of television 2.nd w~ephc'ile ;ntener;;;u((;. bilL r could. not dupLicJ.tc:
the telephone problem except ,cn a cb..!ld' ~ lOY phone :md an inexpemive
intercom, \vruch r fixed wim ftlters. I filterecll1i3 m:lin phone LV salisfy him
that every effon was being illade. t'o.ou~il ~lnt pb.one showed no si~'TI of
interference.
EXHIBIT NO,1
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Grant Pritchard aae
October 29, 1994
Page 2
His television set is in my opinion nor only the culprit in the television
interference issue, but a very poor example of engineering, for reasons I will
explain.
Your letter mentions the findings of the cable company. When the
cable company came out, I took time from work and arranged to be 'present.
The cable technicians verified that no signal was coming down their line.
which makes me surprised when I hear that Mr. Samgiss reponed that th-:
cable people believe that "the antenna is toO C lose to the cable feed point. ,.
With all respect to Mr. Samgiss, that is not what the cable company found,
at least on the day I was there, and it is incompatible with the fact that my
own television sets, which utilize a feed much closer TO my antenna man Mr.
Samgiss' cable feed, experience no interference,
To be certain of doing what I could to verify the cable company's
approach, I installed a high-pass filler un Mr. Samgiss' SCL I already have
two high-quality low-pass mlers on my rig, one between the transceiver and
the amp, and anOL.'1er upstream of the amp. \Vl1en the tirst high-pass did not
help, I inst"lled a second high-pass in line with the first, and we gOt little or
no attenuation from that entire effort. If a signal is coming down the cable
company's line, it is doing so despite their tests and is escaping significant
fIltering. The Sony set used by the Samgis~. family is obviously not
susceptible to reasonable efferts at filtering 00 ham is burdened under the
law with iIllerfe,ence that cannot be cured by l"e:l~f)nable after-market efforts.
Filtering is primarily r.he respoDsibiliry of the maIlclfacturer of the equipmem.
The S=giss television set has inexpensive exte:-:J.2.1 spe2..k:ers h'lng nn
each side of the set, which are fed wilh unsbdded '.vire. :\eedless to say.
I zeroed ill on these. I applied sC'/crai tcr:oiLis on ,me wi..re to see if I cotLd
discern a difference between the filLered and unfilrered wires---to essemially
zero effect. I disconnected Wt;; wit':::; J..U.G believe that th:::rc was no ir;.terfer-
ence on the internal speakers.
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Grant Pritchard aGe
October 29, 1994
Page 3
I explained to Mrs. Samgiss, who was present when the cable people
were there, that the FCC does not impose the sole burden of avoiding
television or other interference on the amateur radio operator, As 'lOll know,.
if a manufacturer is determined to cr-::ate a set that will not yield to after-
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market fIltering. it can cert2.ully do so. I have seen many phones, stereos,
compact disc players, and television SctS that appe2.l" to violate regulations on
filtering. The Samgiss television set is among the worst I have seen.
It is \'ery signillcant, in my opin.ion, that the Samgiss television ex-
periences this problem whether I transmit at 10 walts or a kilowaLt. We tried
transmitting from my rig at both signal strengths without appreciable effect
or significant auenuation at the lower power. And remember that it is the
only television that experiences prohiems in the neighborhood, including my
two sets, which sir within very close proximity of my rig and ?menJla, closer
by a factor of five or mure than the Samgiss ser.
I \',;ould 'oe happy to try reasonable furdKr filtering, though I am at a
loss to know what !liorl: could be appli;.>d, and I believe we would be kidding
the Samgiss Lunily by u~ing cosilltl.ics whea cile problem lies elsewhere.
Perhaps you can suggest some mare possibilities when you visit the site.
My Radio Inswl!ar!on
I look forward to your L11spectiofl or my rig and antenna installation,
which I have tried to consmlCt ~o the llighest;tandards rl'.a[ are suggested in
the ARRL aDd other reference books.
I h:.we m IcC'Cl 731, \vl-1ich ;"l1lS to a Commander HF-~500 amp, and
on to 2. Gap DX-VIII venical amc!illOl. (Mure \m the ;llltr:nna s!t;.iation in the
next .~eC(i~il of thie leC'-c'r.) E\'er;'thing l.:.l cCc' Lnsrall:J.[j()~l is ~ro\lnded to a
common copper bus and from the Lus to a gruJ..'r;d ~od. Ground is enh:lIlc~d
by an \o1FJ gro\.:Ild wner. W;UCD is as '.'ou ";110W an impedanc," match to
ground.. \1;; tra.D.srrllssions pass w:ongh a 0iyc: \'wng 3 KW curler. .The ~ap
antenna ha~ S\YR below 2:1 tic lil frcql:<:;lC:::; Oil whkh j, operates, LDc:udmg
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Grant Pritchard aae
October 29, 1994
Page 4
its narrow llseable bandwidth on 80 meters. I have two Bird wattmeters in
line to mea.sure precisely wattage upsrre2.m. and downstream. and I have used
the Birds to determine with the appropriate nomograph precise SWR at every
100 k.iloherrz on every band, The anteIlTl:1. perfonm to specs on every test,
All coax is highest graue; me antenna i:-; wstalled 1O Gap specs. I Lave
had several discussions WiL1 Gap after the Sarngiss interference complai..T1t was
first made to me, to be sure that the antenna '.'VaS not in some way amiss, and
I replaced the Gap internal coax feeds and inductors at considerable expense,
at Gap's suggestion tbat Ll1ere might possibly be a break or sufficient crimp
in the coax to have caused a problem. The antenna is perfect. It uses the
tr.ree radials prescribed by Gap, and all conne~ti()r,s to ule antenna have been
carefully protected from iIlvasion by moist1.:.re and corrosion.
It is very important to me L1.3.t YOll inspect my installation, and if there
is anything mor~ that could be d(jn~ to bring it to the highest standard. I
would be surprised to hear it, but an},jouc. for lie be:l.efit of AR..'li.' s
expemse.
171e Location of [he Anrenna
I have taken great care and thought to Li.e issue of tocating an antenna
and to decidi.ng '""hat antenna to erect. t-,'ly preferer.ee was for a beam
antenna for itS superior performance and dir::civity. but I live in a 'lie'.'l
corridor to the Golden Gate Brid~e and felt that I could reduce me porenllal
of complaints by the lleighbors -by concedin!:( the Y2.gi and living \vith a
vertical. I amended my planring approval petition to eliminate the Yagi after
carefully advisinz rhe planric.g staff why this \\as d::me J..lld 'Jm r would
attempt to experiment Vv'ilt! a veil!cal to see how it worke,i OJ.t.
I originally placed the vertical, as Mr. Samgiss has cor:ectly said.
behind a trec and wik1.i.~ two or tlu'ee feet of Lb.: extcr;or wall nr my bouse.
I wanted co see if it would perfonn reasonably well at a place where it would
have the !;:J.st visual impact. Th::, ',v:E th~ [Jla(~ where :he antenna was
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Grant Pritchard aae
October 29, 1994
Page 5
virtually bldden from anyone's view, except for a few feet over the roof line,
and ill fact I believe few neighbors even IOle\V it was there. It performed
exactly as anticipatedc--it did not perform at ;ill. My house is pre-war and
the walls are loarled wiD1 chicken wire, \vl"lich attenuated and dblorled Lhe
antenna in such a way that signals to the east and. north were eliminated. The
tree next to the antenna must have had its effect as welL
I L.~en relocated the antenna to the only location in which the three
criteria most important to me could be met. first, it h:::d to offer reasonable
operation ,md minimum attenuation from ne:uby strucrures. Second, it had
to offend the neighhor~ in the least way possible, despite being more visible
than berore. Tnird, it had to be safe in winds and from passers-by.
The resulti.ng installation meets L.'lose criteria reasonably well, although
I compromised against criterion no. 1 by putting the antenna about seven feet
from a garage wall to keep it as far back from the Slree, as possible a.'1d
believe that for UllS reason I gt:l ~igIlifica!ll acttllLl<l.tion to the east and nonb.-
east. Using DX packet spots as a guide, I have tuned spots countless times
and gotten litHe or not.hing to show for the repol1.
The amen.tla is mounted in a base that is sun..1( three feet in concrete, as
prescribed by Gap. It has four guy wires, which are probably UQIleCessary
according to Gap, but keep the antenna from bending, twisting, and perm-
anentlv dist()!ting. It is certainly feasible to move tbe amenna anotber seven
to ten J feel to the southwest, but I 1m persuaded tha! the Samgiss lelevision
set would nor see a difference Therei" little POlnt in patronizing him with
an apparent solution. that in fact is unrealistic. WheIl y,m come to see my
in.5tallaticn, I will b~ very open :0 :,'Oll, sug;;estion Oil this sc;)re
Ph7.nnin.g COfnmlssion Ccnsideratiutls
As you know, Al Bumhalli wenl tlliCug), an crdcal of almost ['0';0 years
on his anteana applicalion, '.lihic.:b. was for ? ~lcam antenna La J. d:J.\v where
it could te seen from a distance, t,) pis I!lisfGnum:. by DC forme, \hyor of
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Grant Pritchard aoe
October 29, 1994
Page 6
Tiburon. The former mayor had the clout to make a problem appear where
none existed. It has been my hope to spare my neighbors and me this
fruitless and misleading experience. A ham is entitled to an effi;:;iem antenna,
and the Town here understands that as a matter of law and federal regulation
a useful antenna almost dictates a Yagi and possibly a vertical as well, if the
amateur demands the right to perform to :.he state of the an. By foregoing
the Yagi I hope to introduce a little caLm into the process, but if my appli-
cation threatens to tum intO the charade that At went t~rough, 1 will certainly
arnend the application, seek an appropriate tOwer and beam, and figure that
whatever comes I will have made the effOrt io be civil to my neig.hbors.
As you will see when we visit on the site, there is little or no real
discretion where the ante una sbould go. The other end of the propertY (the
south end) is in the Golden Gate Bridge view corridor, and to relocate an
antenna there would produce a serious protes" I counseled with my neigh-
bors across the street before experimenting with placemel:t of the amenna, as
they would be mOSt affeced by the antenna if it \vere located elsewhere, and
they have not said a word of compiaiIlt in the several months that the antenna
bas been i:J. its present location. ll/a neighbur has complained of the visual
impact cf the antenna, fnc!uding [he Samgiss family.
I have recently purchased a Gap DX-IV Voyager amennJ.. and I ha\'e
amended my appli.::ation lO so indicate. The Voyager has tile bands that we
need for the next three years of dirrJ..n.islled solar flux and the consequent
push imo lower bands" Ii has a bandwidth of aboU! 100 KHz on 160, and the
full hand on 80, 40. and 20. [wil: r.b.en as>: il sloper for the WARe and
higher bands.
Th Voyage:- is 4S feet higl.1. wt.::reas the present DX VIn is 33 feet.
The Voyager requi.res gl~YS, wb;Ore;:"s ~bey are 'Jptiot121 v:irh [he lower an-
tenna. 01ovim: [he ii11tenna loc3.ticm 3. few feet is feasibh:: 3.nd v,,'ould illa.:..:.e
~yli:i.u' (be am;nllcl. easier. Dv movir.," the 2l1tCflQ3. perhaps 10 feet co the
o L;' ""'" ~
so{n.b.wcst, away from ,11:: Sal'1giss fa.'Uilv Ilome, we will in.;reasc its visual
impact, but move it sum:::whJ.l f"nh:;~ "W3.!, :"romotnJctures and i.c.w a sj.10t
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Grant Pritchard aae
October 29, 1994
Page 7
where it can probably be guyed with more purchase in all directions,
Needless to say, I am entirely open to doing so, but not on the premise that
the Samgiss family will feel better about it. because I do not believe Ll:1eir
television set \vill be less impacted.
What r am not in a position to accept is [lIe eudless "Why can't it go
there in.stead of here?" that Al Burnham weD.( through for almost two years,
and I am yery concerned that your letter of October 25 may create the im-
pression tl"at it should be a simple matter to sarisfy Mr. Samgiss by moving
the a.ntenna approximately 45 feet, back where I experimented unsuccessfully
with it many months ago. The antenna simply does not work there, and if
I were faced with a demand to put it there. I would have to amend my
application w erect a tower next to the house and put a beam up over the
house where it ',vould annoy everyone who sees it. I don't see a beam as
unlovely, but people who are not hams do. I \V;1nt to keep them happy, but
Dot at the expense of operating reasonably well.
171e Complaim aoout RF Health Effects
It is simply not possible to know how to respond to Mr. Samgiss'
complaint of RF effects on his child, because they are /lOC reasonable or-
valid. In all the contacts \ve had, nolling of this kind ever came up in his
complaints. He has been silem on this alleged issue until now, and I have to
believe that he is pulling out ilie stopS simpl>, to force the antenna to be
moved, come what mav I dord blame him for being emotior:al, except
'Nhere emotion results in a loss of accuracy.
We !ive in an environment in. my neighborhood that is rife with E~lF.
The Sarnl!iss family. the Dei9.hbors, and ill\' own f:u.l1ilv ba\'e 2l1tiqu:ucd bigh-
VJlcage p~o'.','cr pol~s ru~i1g along m.:' Jo;~gc:sr dimc::~ion of ~lU Olir lars, and
there appear to be t',liD 12 KV Enes or; ea:b. p,)Ic. Te.ese insr.all3tions appe~
to be sevenl dc:cJ.dc~ old, and I hc'.\'~ ::10 dOlCbc tb,t tbey leak 8cross msul3.tors
and probably from traDsfc.rmers, sirl':-:: I CJ.::l gc: plenEY of evidence of leakage
. d . ' '. )nm\'v~mo,l
in t.h~ [or Gl ot !:J3.oh, pelt's. an Gt...~er non ;~om~.gD~(1C DOlse c. . L L..u.
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Grant Pritchard aoc
October 29, 1994
Page 8
Likewise, if r-.-rr. Samgiss wams to elim.i.o.ate the possibility of RF
effects or EMF, !'.lS television set no dO!.lbt puts out more radiation than he
gets froilllUY signal, aud I noticed the days that I was there that his daughter,
like all children, likes to sit close to the set This is not to denigrate his
feelings, provided that they are not tor the purpose of visiting unfairly an
effect on my antenna. All of us pay attemion to radiation where we did not
pay attention a few years ago, but the claims of RF and EMF are entirely
speculative. I have \\'3tched the literature on this issue, and as a lawyer, I
have had cases over the years involving PG&E and other power lines, which
in many cases have been installed for many years over commercial and even
residential developmems, especially in the Sacramento area. There has never
been a documen:ed ,:ase or statistical ~meeestion of which I am aware that
proximity to E.MF of that magnitude yields an enhanced risk of disease, Yet,
as we all know, when we drive under those lines on our way up 1-80, we
have no doubt th8.t tbev create fields, s;iven the interference on our radios,
. -
I recall a letter to QST magazine not so long ago from an engineer who
had spem a lifetime in RF and E:vl !ldds, ueginuil1g many decades ago when
the strength of that radiation must have been many rimes wbat it is today with
proper shielding, S\YR control, and so on. He estimated that over 60 or
more years he must have received hundreds, if nor thousands, of times the
theoretical limits that people now caLk about as control on Rl:-" emisslOns, and
he is alive. well, and tOL'111y unaffected by his experience. 111ere have been
enough decades now of high exposure in cenam professions and ind'Jstries
to RF emission~ that we would have seeD stiHisticaliv significant results if
they were there.
\Vh:it is [0 be Gone about tllis) EC'w do we 3:itisfy ;.,[r. Samgiss, if
anything could" I do not know, bu: of ccmse ..;;,}u:d :e"is~ r\..,e suzgestion w:.u
the output from my radio is ~nythic.g but a ;lli.nor cc,ntribuwr to the
em'ironrnel1l ill which he and his LU::J;ly live oy cb,}ic~. Wh~o. you -.:oc.si,i~r
that my vertical is rac.iating reiati':c:ly low pO'.'i.::r. ornnidireclior::31ly, over a
length of antenna of 33 le::;[, ,_he sur.-ac:: :1r':;;1 "vcr which even a kilowatt
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Gram Pritchard aae
October 29, 1994
Page 9
signal is thus spread and diffused ca.n have minimum discernable impact even
as close as a few feet away. If the FCC or another responsible agency
wishes to inspect my installation and apply to it reasonable standards
applicable to all installations similarly situated, they will find it within the
standard they would expect of a cOillJ.-cercial installation.
Conclusion
I hope that it is apparem from this letwr that I have taken thoughtful
care of the Samgiss' concerns, and I .have to say that they have not been very
grateful or considerate in rerum, They call on the phone demanding that all
transmissions srop on spot. They react emotionally and without listening to
what is said, and they ,tan from the position that I have no right to operate
my rig. They show little appreciation for the difference between interference
that good oper:l.Cing practice and an efforr at filtering can fix and interference
that t!:Je manufacmrer has left essentially irremediable.
My own concern is that your letter of October 25, which was based
solely Oil ilieir compl8.wt, may be ruisinterpre,d by the p!~"ning commission
at the hearing on my application on November 9---and u'1a~ it will start a
rounc, of "Why can't it go there instead of here"" C12(;!; tLat starts, the
commission feds an obligation [0 let every neighoor---inc!:tding those who
are not impacted by the anteillla under 'my scenario---wish the antenna off on
everyone else in the usual NI~rBY response. The outCOr.:le would be what
Al Burnbar:l wem through. By the rime tbe Clrul or sixth speaker b.as gotten
up. all relaticrrship between the level of d~scussion 3..C.d the science and
aesthetic issues l)f antenna se!e(;rion and sitins has evaporated.
I \,,'i)l "p'1r"~:".l.o "(lU" ill"r.;..,c- rr<' tl''''''''' ',IJ 'eol at wb2..( lS here and to
.&. I.... J;-'''' ""....~..... .... J ;. ~::J ~.i.....I.\" ~..l... .....
t2kc into cocsider:nion aU that ha; been done for rr,e S:lli.giss familv and 110\'1
unlikely it is that ::myone can at this point further rectify Sony's \'ialation of
the; FCC manufacruring standards in Mr. Samgiss' set. I net'(! a letter fr'Jill
you for L.1.e pi:nmiug commission PUtli.c.g your earlier letter l.'JtCJ perspective.
veri.f::ing that it was based soleiy on ;he Sarllgi~s complauH, 8nd relterat:.ng
*'., .
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Graat Pritchard OOC
October 29, 1994
Page 10
that I have performed to a high standard in attempting to meet the Samgiss'
complaint.
Please call me at your earliest converJence. It was a pleasure to speak
with you about this issue this morning.
v:'
Malcolm A. tvIisuraca
Copies: AJi Samgiss
239 Diviso Street
Tiburon, California 94920
Pbilip Kane, p.E.n.D,
Supervisory Engineer FCC
John Wallack, W6TLK
Section Manager, ARRl.
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~ /nad
Grant Pritchard
OOC San Francisco Section
106 San Carlos way
Novato, California 94945
November 5, 1994
RECe\VED
NOV 0 e \994
TOWN OF TI6URNGottEPT.
PLANNING eo 6UII.DI .
Mr. Malcolm Misuraca, KC6VDR
223 Diviso st.
Tiburon, Ca. 94920
Re: Interference Complaint
Dear Mal,=,olrn~
I am in receipt of your October 29, 1994, correspondence
which has been extremely helpful in putting matters in
perspective amid a number of calls from the Samgiss family
and an adjacent neighbor. As I stated in my October 25, 1994,
correspondence to you, I was referred to you as a result of
an interference complaint made to the local FCC Field Office
by the Samgiss family. My initial statements regarding the
scope of the complaint were based, as my letter clearly
states on that initial report and served to advise you of the
substance of the complaint.
I am pleased to learn that you have now thoroughly
investigated all possible alternatives. I would also like to
thank you and your family for the opportunity to first hand
inspect your installation and discuss the matter further.
You should finally note that I was unaware of the
planning commission hearing on your application calendared
for November 9 . Indeed our involvement was initiated by the
complaint.
I thought it might be helpful for you to have on file a
summary of my findings as they relate to my personal
inspection of your installation and our conversation
regarding your corrective actions and alternatives.
Summary of Inspection Activity:
The amateur radio station installation licensed as
KC6VDR located at 223 Diviso street, Tiburon, California was
personally inspected on November 5, 1994, at approximately
0900 Hrs. I fully inspected all radio equipment,
connections, antenna structure(s) and related equipment.
Specific attention was noted to cable television feed points
and antenna location vis a vis neighboring structures. I also
had an opportunity to discuss all matters with Malcolm
Misuraca station licensee.
EXHIBIT NO. 8
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Amateur radio station KC6VOR mainly consists of an ICOM
781, which incorporates the use of a Commander HF-2500 amp
which in combination feed a vertical Gap OX-VIII antenna
which is ground mounted within back yard perimeter fencing.
The station is common grounded using wire braid, a copper bus
and ground rod system. Additionally ground is enhanced with
the use of a MFJ ground tuner which supplies an impedance
match to ground. All coax (Belden 9913 - double shielded) and
connections (PL-259) are of high quality and assembled in
good engineering fashion. All transmissions utilizing this
equipment pass through a Nye Viking 3 KW tuner.
The GAP OX-VIII antenna has been extensively re worked
by replacing all internal inductors and coax feed points
pursua~t to factory s~ecification. This r~work is considered
an optional upgrade, at the owners expense, and is not
required to achieve desired performance and operating
tolerances.
I understand that this antenna will be replaced with the
GAP OX-IV Voyager which should provide adequate coverage when
used in conjunction with a sloper antenna system to support
WARC and higher band coverage. Although this combination will
not provide the ultimate efficiency and directivity of a beam
antenna, pursuant to our discussion, Mr. Misuraca will
proceed with the vertical antenna system in the interest of
addressing the concerns of his neighbors.
All remaining engineering representations made in the
Misuraca letter of 10/29/94, were verified to be accurate
statements.
Conclusions:
o The amateur radio station KC6VOR is of high quality
and all engineering aspects have been met to insure
that the operation of the station is conducted in
leqal fashion pursuant to FCC regulations and
guidelines.
o Mr. Misuraca has provided his services,
personal cost, in an efficient manner,
his ability, to alleviate all concerns
neighboring parties.
o Continuing interference experienced by the Samgiss
family has been isolated to external add on speakers
connected with unshielded speaker wire to the family
television set and/or the use of an unshielded
telephone instrument. It is recommended that the
Samgiss family replace the speakers with ones of
higher quality and also connect them with shielded
wire cable such as "monster cable" or similar type.
The unshielded telephone should be replaced as well.
at his own
to the best
made by
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o The installation of the new GAP DX-IV voyager antenna
by Mr. Misuraca is appropriate even though station
efficiency would be improved with the use of a beam
antenna system. .
o I concur with the comments made by Mr. Misuraca in his
October 29 correspondence regarding RF Health Effects.
o I conducted a thorough review of operating procedures
with Mr. Misuraca specifically as they relate to
minimum power settings necessary to maintain contact.
I am satisfied that those procedures will continue to
be followed.
o I am fully satisfied that the, engineering care taken
in amateur radio station KC6VDR is above the normal
experience, not because of the equipment used, but
rather the concern for detail and having a goal of
maintaining a high engineering quality standard.
I am closing my file on this matter as a result of my
findings. I will forward a copy of this letter to both the
local FCC office and the Samgiss family.
Best R.. egard~/J
. /
_ ..... -.i~,'-P,
(.-',l-i. - \
- Grant ~ritchard, OOC
San Francisco section
cc: Ali samgiss
Philip Kane P.E.fJ.D.
Supervisory Engineer FCC
John Wallack , W6TLK
Section Manager ARRL
Dan Catron, Associate Planner
Tiburon Planning Department
Town of Tiburon
1155 Tiburon Blvd,
Tiburon, CA. 949~
kc6vdr2
Section 1:
Section 2:
section 3:
section 4 :
Section 5:
section 6:
Appendix:
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Page 1 of 15
Richard Karlquist
Electronics Consultant
PO Box 700009
San Jose, CA 95170
Jan. 27, 1995
RECEIVED
JAN 3 0 1995
TOWN OF TIBURON
PLANNING & BUILDING DEPT.
FINAL REPORT ON MISURACA ANTENNA APPLICATION
CONTENTS OF THIS REPORT:
Executive summary
Answers to commissioner Greenburg's questions
dated 12/19/94
Comments on some statements by the applicant
dated 11/27/94
Answers to Dan Catron's questions
dated 1/13/95
General discussion of antenna tradeoffs
Conclusions
A strawman antenna
Attachments: QST article, various sales literature, figures
1 through 4.
--------------------------------------------------------------------
SECTION 1: EXECUTIVE SUMMARY
Mr. Misuraca wishes to put up a taller amateur radio antenna
to maintain his ability to communicate during the upcoming
changes in radio conditions due to decreasing sunspots. This
report examines the three way tradeoff between communications
effectiveness, visual obtrusiveness, and the degree of difficulty
entailed in implementing various alternatives. There are a
limited number of options available within the constraints
applicable here, and the option chosen by Mr. Misuraca in the
present application appears to be the most satisfactory one
possible for a reasonable amount of effort. The city staff and
planning commission have done a commendable job of learning about
the technical aspects of this situation so as to be sufficiently
knowledgeable to make a fair decision.
As of this writing, Mr. Misuraca has been unable to erect
the proposed antenna due to inclement weather, hence the author
has not visited the site. However, a site visit prior to the
hearing is still planned, in case there are details not apparent
from the plat map supplied by the planning department.
EXHIBIT NO....:L-
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Page 2 of 15
SECTION 2: ANSWERS TO COMMISSIONER GREENBURG'S QUESTIONS
DATED 12/19/94
QUESTION 1: "Is there a log that shows use of the existing
antenna? If 'yes', please indicate the greographic range of
calls and assess
ANSWER 1:
At one time, amateur radio stations were required by FCC
regulations to keep a log of all communications. This regulation
is no longer in effect. Most amateurs only log particularly
interesting contacts, such as with a country that hasn't been
contacted before. The question is in reference to the existing
31 foot antenna, by the way. Refer to my comments elsewhere on
this existing antenna.
I have not had the opportunity to review any of the logs Misuraca
may have kept, but I don't believe they would be especially
relevent to this application.
QUESTION 2: "Is there any antenna (single/combination of
antenna(s)/ dish) with a lower visual profile that could
accomplish something approaching, if not achieving, the kind of
range that the applicant desires?"
ANSWER 2: It is technically possible to make an antenna that
actually outperforms the proposed one and has lower visual
profile. The current issue of QST magazine has a review of the
proposed antenna and notes that it is not as good as another
antenna with lower visual profile. However, that antenna is no
longer available. There is a Japanese antenna that would
approach, but not equal the GAP OX-IV in performance, and is less
obtrusive. As of this writing, the author has not been able to
verify its availability in the USA. Everything else on the
market is either much bigger or much smaller than the GAP OX-IV.
The smaller antennas would be much less effective than the GAP
and the one larger one, at 65 feet, is clearly a visual problem.
[Reference: QST, Jan. 95, pp 75-79, copy enclosed].
QUESTION 3: "Is there some substitute for the 80" diameter halo
which would have a lower visual profile?"
ANSWER 3: Let me first note that what is referred to in the
question as a "halo" is normally called a "top hat" in the
technical literature. The term "halo", as used in the
literature, refers to an entirely different type of antenna. In
any event, I make the observation here that the design of the
OX-IV appears to be exactly like an antenna described in Sept.
1978 QST in terms of height and top hat size. [Note I am unable
to supply a copy of this article at this time]. without going
into technical detail, the net result is that a 45 foot antenna
with an 80 inch top hat is equivalent in certain respects to a 55
foot antenna with no top hat.
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Page 3 of 15
Hence one answer to the question would be that one could substitute
an additional 10 feet of height for the top hat. Of course, it
is not possible to start with the OX-IV antenna, which is engineered
for a top hat, and simply replace the top hat with an additional ten
foot section without re-engineering the rest of the antenna to be
compatible with the new scheme. Unless there is a threshold situation
regarding height, such as where nothing below 46 feet is visible,
it seems to me everyone is better off with a taller antenna with
no top hat. As noted above, there is no such commercially
available antenna however. Regarding reduced antenna height, the
deleterious effects of can be minimized (within limits) by better
electrical grounding of the antenna system, which is of a
somewhat different nature than the safety grounding of the PG&E
electrical power. It turns out that the lot in question is far
too small to contain an extensive "ground plane" system, hence
short antennas simply won't work well. About the best that could
be done would be to run some inconspicuous wires along the wooden
fences shown on the map to be used as "tuned counterpoises".
Fortuitously, the fences happen to be located in just about the
right configuration. The author once used this scheme at his
Cupertino residence (Which is also on a long narrow lot), and it
worked fairly well, although he had the luxury of a 65 foot high
vertical antenna.
QUESTION 4: "Could the functional part of the antenna be mounted
on some kind of retractable post?"
ANSWER 4: The antenna in question is such that it would be
impractical to make it retractable in terms of being telescoping
or folding. However, it would be quite feasible to simply mount
it on a hinged base and pivot he entire antenna intact at the
base to a position parallel to the ground and perhaps elevated
six inches to keep it out of the dirt. (A trench would have to
be dug for the top hat to fit into). If the antenna were located
on the south side of the fence, immediately adjacent to its
present location on the north side of the fence, it could lie
down pointing south southeast along the "concrete walk" shown on
the map. The apricot tree would have to be relocated and the
prune-plum tree perhaps trimmed. The antenna, when folded down,
ought to be hidden by the wooden fence along Centro West Street.
I have enclosed some correspondence taken off the Internet
(Usenet) discussing the use of a TV antenna rotator laid on its
side to pivot a vertical antenna up and down. Another ham used a
modified garage door opener to pivot an antenna up and down. It
would also be possible, theoretically, to construct a antenna of
somewhat different design (but equivalent performance) than the
proposed one, but with the ability to retract. However I am not
aware of anything available off the shelf along those lines. If
it did exist, it would be much more expensive than the proposed
antenna. It should also be noted that there is no off the shelf
kit for sale than would permit an antenna to pivot down at the
base as described above. It would have to be a homemade affair
using hardware store parts.
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QUESTION 5: "Is it true that a minimum height is required for
this kind of antenna to function on a given frequency, regardless
of location (see 11/9 minutes, p. 4). . What heights are necessary
for what ranges of transmisssion?"
ANSWER 5: Ideally, an antenna should be half as long as the
wavelength being used. The elements of nearly all Yagi type
antennas are close to a half wavelength long. In some of the
records pertaining to this application, there are references to
the "160 meter band". For that band, the wavelength is 160
meters (about 500 feet). Hence an antenna for that band would
preferentially be 250 feet long. In the case of a vertical
antenna, it is possible to replace half the antenna with a screen
of wires running along the ground, which reduces the recommended
height to 125 feet on the 160 meter band. As explained in #3
above, the applicant doesn't have the space for a proper ground
screen, so even 125 feet involves some compromise. At the
proposed height of 46 feet (with "top hat"), the applicant would
be fortunate to get an efficiency of 50% on the 160 meter band,
meaning only half his transmitter power would get radiated, but
it is still in the "reasonable" category. (It is not possible to
predict exactly the efficiency of this type of antenna; only
guidelines are possible). At the present height of 31 feet, with
no top hat, only a few percent of the transmitter power would get
radiated, making operation very difficult on the 160 meter band.
It is surprising how much difference the extra 15 feet make. On
the other hand, the 46 foot antenna with top hat would work quite
well on the other bands (80, 40, 20 meters) which all have
shorter wavelenghts. (The 160 meter band has the longest
wavelength of any band). The present 31 foot antenna is a poor
performer on 80 meters, but is OK on the other bands, according
to the Jan. 95 QST article referred to above. The present 31
foot antenna is probably about as good as any other commercially
available antenna in the 30 foot class (and there are a lot of
"me too" antennas in this class). It would be possible to
improve the situation somewhat without exceeding 31 feet by going
to a custom antenna, but it is not reasonable to expect every ham
operator to be technically proficient enough to construct his own
antennas. In any event, no 31 foot antenna (without top hat) is
going to work really well on 80 meters with the limited grounding
that is possible. See #6 below where I discuss the importance or
lack thereof of the 160 meter band.
QUESTION 6: "Are the comment in the Planning Commission minutes
of 11/9 regarding variations in sunspot activity (as they affect
ham radio reception) over the next 50 year period. Is it
feasible to permit different antenna heights during different
time frames to allow improved reception while minimizing visual
impacts?"
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ANSWER 6: Propagation of radio signals follows a cyclic pattern
related to the time of day, the time of year, and the time within
the sunspot cycle. The sunspot cycle refers to the fact that the
number of spots (Le. "storms") visible on the sun follows a
regular pattern where it reaches a maximum about every 11 years.
Halfway in between the maxima, the number of sunspots reaches a
minimum. Currently, the sunspot cycle is approaching a minimum.
During sunspot minima, it is generally necessary to use the
longer wavelength bands to maintain the ability to communicate.
Short wavelength bands, by and large, are useless during sunspot
minima. During sunspot maxima, short wavelengths become usable.
The bands with shorter wavelength are such that less power and
smaller antennas are sufficient to communicate. The longer
wavelength bands are usable to some extent during sunspot maxima,
but more power is needed and less range is generally possible.
During a sunspot minimum, 20 meters may be usable only in the
middle of the day (which limits the operator to weekends if he
works the day shift). In my experience, the longer wavelength
bands such as 40, 80 and 160 meters are always usable no matter
how low the sunspot count gets. Unfortunately, 40 meters is of
limited usefulness for voice mode, for a variety of complicated
reasons. It is mainly a radiotelegraphy (Morse code) and data
transmission band. Hence, a case could be made that every
amateur station ought to be able to operate on the 80 meter band
to provide a minimal ability to communicate long distances.
The need for the 160 meter band is less clear. It is never
as good as the 80 meter band, even with optimum antennas. For
many years, the 160 meter band had severe operating restrictions
imposed by the FCC and most amateur equipment did not cover the
band. Hence, it has traditionally been a "niche" band. More
recently, the restrictions have been removed and most
transmitters now cover the band, due to technical advancements.
However, the antenna size problem and the poor propagation of
signals on the band are such that it is still not (and probably
never will be) a "mainstream" band. Although transoceanic
contacts are possible, most of the activity typically heard is
within a thousand miles. It is hard for me to convince myself
that the lack of this band would be a severe hardship.
QUESTION 7: "Neighbors have expressed concerns about EMF safety
and requested that transmission be on the lowest power possible.
Please comment."
ANSWER 7. It is probably counterintuitive to the layman, but if
you are worried about EMF safety then you would want the radio
station to use the largest antenna possible. This will permit
less power to be used. Obviously, whatever the EMF threat, it is
reduced when less power is used. Also, the electromagnetic
fields in the immediate vicinity of a small antenna are
frequently much higher than for a full size antenna. For
example, when using a 1500 watt transmitter with a 6 foot whip
antenna on a car, it is not unusual to have electric fields so
high that sparks are emitted from the top, unless special
precautions are taken to prevent it. With a full size antenna,
this is never a problem.
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Page 6 of 15
The experts on EMF disagree about the danger of an HF transmitter
(i.e. frequency range from 1.8 to 30 MHz.) but all would
agree that these low frequencies are far less dangerous than
VHF/UHF/microwave frequencies. It is interesting to note, for
example, that cellular phones operate on almost the same
frequency as the large microwave ovens used in restaurants.
Using the lowest power possible is dependent on the discipline of
the operator. It is good operating practice to ask the station
at the other end if one's signal is strong enough that it would
be OK to reduce power. Incidentally, when it comes to EMF
safety, the priority item for city governments should be to
outlaw the treatment of buildings for termites with microwaves
until such time as the safety of such schemes is verified. In my
opinion, those devices are far more dangerous than HF ham radio.
QUESTION 8: "Grant Pritchard letter,
power settings for this application.
some physical or other way to insure
exceeded?"
11/5/94 refers to minimum
What are these? Is there
that they will not be
ANSWER 8: The only Grant Pritchard letter I have a copy of is
dated 10/25/94 (exhibit 7) and I don't see anything about
"minimum power settings" in that one, so I can't answer this
question at this time.
QUESTION 9: "The applicant has stated that he has to operate at
1500 watts to call New Zealand. Is this true? If 'yes', what
are the implications in terms of antenna height?"
ANSWER 9: I am frequently asked questions such as this, which
boil down to "How much power is needed to get how much range?"
and the answer is: it depends. I once easily contacted a
station in Australia from my car in Seattle running less than 50
watts to a 6 foot antenna, and there are no doubt even more
amazing anecdotes than that one. However, that contact was made
under ideal conditions on the 20 meter band. On the 80 meter
band, even 1500 watts is not necessarily enough power to
communicate with New Zealand. My experience on 80 meters using a
much bigger antenna than anything being discussed here was that
1500 watts would typically only get as far as Japan. The
implications in terms of antenna height are, as I previously
stated, that bigger antennas require less power (assuming the
operator has the discipline to reduce power). During a sunspot
minimum, I am not sure that one could count on regular schedules
with New Zealand no matter what antenna were used.
QUESTION 10: "What band(s) would provide "reasonable" use and
what minimum height anteann or what configuration of antenna(s)/
dish would accomplish this use?"
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Page 7 of 15
ANSWER 10: It seems to me that one ought to have use of 80, 40
and 20 meters. And to get on 80 meters, a reasonable antenna
height is a minimum of 45 to 60 feet (without top hat) perhaps a
bit less with top hat. Those heights would be quite adequate for
40 and 20 meters as well. As far as what configuration would
accomplish this (besides the proposed OX-IV), let me first point
out that other antennas can be substituted that don't have
anywhere near the visual clutter of the OX-IV. All that is
really needed is a single vertical pole, say 50 feet high, with a
small enclosure (the size of a coffee can) for a tuning network
located at about the 15 foot level. The pole can taper from 1
1/4 inches down to 3/8 inch at the top. This would probably
actually work better than the OX-IV and have a lot less visual
impact. See figure 1 in the attachments. The only disclaimer is
that it would have to be a home-built antenna, as there is
nothing like that on the market (for marketing reasons, not
because there is any technical problem.) I built an antenna
similar to this when I lived in San Jose 15 years ago. It worked
well. See the attached diagram.
(
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Page 8 of 15
SECTION 3: COMMENTS ON SOME STATEMENTS BY THE APPLICANT
DATED 11/27/94.
1. ANODIZING:
In the Nov. 9 planning commission minutes (#726), at the end
of the second full paragraph, Mr. Miseraca states "although he
has never seen anodizing of the antenna done, he feels that if it
was (sic) possible, all the of manufacturers would be doing it."
Anodizing has been a standard (though not universal) technique
used in the TV antenna industry for decades to reduce corrosion.
Although simple anodizing is colorless (hence not obvious
visually), it is possible to add dye to the process to get any
color desired. Frequently, TV antennas use gold colored
anodizing, so they look "gold-plated". Black anodizing is very
common outside the antenna industry. It is true that
commercially available ham radio antennas are not usually
anodized, but the parts could be taken to an anodizing shop
before assembly and anodizing by the purchaser. Because
anodizing is electrically insulating, the ends of the tubing
would have to be masked off. On the other hand, it isn't at all
clear to me that anOdizing would make much difference in terms of
appearance. How many people notice whether TV antennas are gold
anodized or not?
2. YAGI AS THE GOLD STANDARD::
On pages 3 and 4 of Mr. Misuraca's letter dated Nov. 27,
there is a discussion of the Yagi antenna as the gold standard of
amateur radio communication and the assertion that I should be
comparing any strawman to a Yagi, not to the DX-IV. This is
probably too strong of a statement to make, relecting ham radio
folklore as much as technical fact. It is usually connected with
the cliche that a "vertical antenna radiates poorly in all
directions", which has some truth to it, but it needs
clarification. A typical commercial vertical antenna, mounted on
the ground, without an extensive ground plane, indeed is greatly
inferior to an optimal Yagi. On the other hand, the optimal
vertical in the strawman below is close in performance (although
slightly lower) to the compromise Yagi that the applicant
requested, then withdrew. Besides the slightly lower
performance, the vertical also doesn't have directional receive
capability. This isn't required 90% of the time, however. Also,
directionality can be acheived with a separate directional
receive antenna that could be very small (the size of a
basketball). These have been discussed recently in the
literature.
Changing from the current 31 foot vertical to the OX-IV 46
foot vertical would move the 20 meter performance to one cut
below a Yagi, as opposed to the 31 foot vertical which is not
very good on 20 meters as documented in the QST article.
Nevertheless, the increase to 46 feet is considerably more
important with respect to 80 meters than 20 meters.
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Page 9 of 15
I have enclosed some information on the Will-Burt
retractable masts which would allow a Yagi to be raised to over
50 feet when in use, yet lowered to 8 feet when not in use,
almost below the fence line. I would encourage the applicant to
resubmit the Yagi with one of these masts if he is sufficiently
motivated to spend the money on it. (The masts cost around
$10,000). It would be up to the participants to negotiate what
daytime hours would be available to extend it (assuming all
nightime hours are available). Perhaps 4 to 6 daytime hours per
weekend would be a good compromise. Perhaps unlimited time
should be allowed on days when the view is ruined anyway due to
fog or rain. Another popular tactic is to arrange to operate
during times when the neighbors are known to be sleeping or
absent from the home, if their habits are sufficiently
predictable.
r
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Page 10 of 15
SECTION 4: ANSWERS TO COMMENTS ON DAN CATRON'S QUESTIONS
DATED 1/13/95
QUESTION 1: "I gather from some of the statement in your reports
(Greenberg #10) that one of the more important band for ham
operators is the 80 meter band. My information indicates that
the bandwidth on 80 meters is limited (to 130 kHz.) on the DX-
VIII (whereas the DX-IV operates on the 'full bandwidth.') What
are the implications of this limitation?"
ANSWER 1: As I have indicated elsewhere, 80, 40 and 20 meters
are the most important bands in general, and for voice operation,
80 and 20 meters are the most important. (At one time, voice
operation was forbidden on 40 meters, and though now legal, isn't
very popular) 80 and 20 meters are generally available on a
mutually exclusive basis; that is, when one is usable the other
is not usable.
A short tutorial on "bandwidth" is in order here. Radio bands
can be described in terms of either a range of wavelengths or any
equivalent range of frequencies. Any given wavelength always
corresponds to a certain frequency and vice versa. The so-called
80 meter band actually covers 75 to 85 meters (wavelength) or
equivalently 3500 to 4000 kHz., that is a band width of 500 kHz.
This can be compared to the dial on any AM radio that goes from
550 kHz. to 1500 kHz. One of the disadvantages of decreasing
the height of an antenna is that the frequency range becomes
limited to less than the amount permitted by FCC frequency
allocations. In the case of the DX-VIII, the user can only
utilize 130 of the possible 500 kHz. of the 80 meter band. This
is not necessarily a big hardship however. For example, when I
operate on the 80 meter band, I rarely go above above the bottom
50 kHz. of the band and there are many others like me. Mr.
Misuraca's operating habits may differ, of course.
QUESTION 2: "Are there commercially available vertical antennas
in the vicinity of 45 feet high that do not include top hats (or
are otherwise less visually obtrusive that the DX-IV), that will
perform comparable to the DX-IV on 80 meters?"
ANSWER 2: Unfortunately, most commercial antennas are in the 20
to 30 foot range and are essentially "me too" versions of the
DX-VIII. The only commercial verticals in the DX-IV class that I
have been able to locate are the Creative Design CV48 and the KLM
SSV-80-40-15. The CV48 is 39 feet high, and is a smooth tube
tapering from 2 1/8 inch diameter to less than 1/2 inch at the
top. The only protrusions on it are three horizontal rods that
look like they're about 3 feet long, located about 2/3 of the way
to the top. It weighs 26 Ibs. At this writing, I have not been
able to confirm or deny that there is currently a dealer who is
importing this antenna from the manufacturer in Japan, although
other antennas from the same manufacturer are being imported.
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Page 11 of 15
The KLM SSV-80-40-15 vertical is a high performance vertical
being "full size" on 80 meters, that is 65 feet high. A general
description of it would be a "tower" about 30 feet high with a
tubing type extension on top to get the full height. Not very
visually obtrusive above the tower part, but below it, rather
"busy". The tower is tapered such that it gets bigger as you go
lower, resulting in a width of 4 feet at the base. The large
base could easily be hinged to allow raising the antenna at
sunset when the 80 meter band "opens". Since it weighs only 88
pounds, it might be able to be "walked up" by hand, depending on
the person's strength. It is self supporting in winds up to 100
MPH. It is rather expensive at $860 list.
QUESTION 3: "I assume that such antennas (45 feet, w/o top hats)
would not perform as well as the DX-IV on 160 meters. Is this
true?"
ANSWER 3: For 160 meters, you either need a lot of height or a
top hat or both for good performance. The other tall vertical
antennas mentioned in the preceeding paragraph do not even claim
to be able to work on 160 meters, although you could get them to
work on that band by adding a circuit known as a "loading coil".
In that case, the KLM, being tallest would work best, and the
Creative Design would be the least effect, being shortest, with
the DX-IV in the middle. All would outperform the DX-VIII or
similar 30 foot antennas.
QUESTION 4: "In your opinion, would it be "reasonable" for the
Planning Commission to look towards a solution that focuses on
optimizing performance on 80 meter while minimizing visual
impacts? (This may be at the expense of performance on 160
meters.)"
ANSWER 4: Technically speaking, almost anything you do that
improves 80 meter operation also improves 160 meter operation, so
it is a moot point. I would however make the comment that I tend
to think of the 160 meter band as a place for the ham who has
already done everything on the other bands (i.e. contacted every
country in the world, etc.) and is looking for new frontiers to
conquer. If you just want to communicate, 80 meters is virtually
always better.
QUESTION 5: "The applicant contends that the Town should compare
any alternative antennas with the performance of a yagi as you
discuss in your report. Would it be appropriate to compare
general effectiveness (for long distance communications) of a
yagi operating on 20 meters versus a commercially available
vertical antenna operating on 80 meters?"
ANSWER 5: When 20 meters is "open" (i.e. usable), it is so much
better than 80 meters that a 20 meter vertical will probably
outperform an 80 meter Yagi, so that comparing a 20 meter Yagi to
an 80 meter vertical is a *very* lopsided comparison. The
problem is that 20 meters is unavailable after sunset, so 80
meters becomes the only game in town.
(
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Page 12 of 15
SECTION 5: GENERAL DISCUSSION OF ANTENNA TRADEOFFS
INTRODUCTION:
I have already covered a lot of the relevant issues in my
answers to commissioner Greenberg's questions. However, in this
report I am going to summarize a number of important tradeoffs
involving antennas that are crucial to the decision making
process. Once everyone understands these tradeoffs, the parties
involved can make informed decisions. Note that I am writing
this report before actually visiting the property, so all I have
to go on is the map and other documentation that was furnished.
VISUAL IMPACT VS. COMMUNICATIONS EFFECTIVENESS:
A 2 dimensional tradeoff between visual impact and
effectiveness is implied in many of the discussions here. There
is, however, a third dimension of "convenience" or "difficulty".
This would take into account cost, effort, time, ease of
installation, ease of use, disruption of the applicant's own
yard, availability, maintenance, etc. An analogy would be the
perceived tradeoff between the performance of a car and its
emissions. It is possible to buy cars now that are faster than
the unregulated cars of the 1960's, but the cost is much greater.
HEIGHT VS. GIRTH (visual):
Whenever the subject of regulation of antennas comes up, it
seems to get hung up on the issue of a height limit. Certainly
it is true that, ALL OTHER THINGS BEING EQUAL, raising the height
of an antenna generally increases its visual profile. However,
the girth of the antenna is also quite important in terms of
visibility, yet "girth limits" are rare. The author lives in
Cupertino, which allows a height of 55 feet but has a girth limit
of 12 inches for towers. Restricting the size of tower not only
decreases tower visibility, but effectively limits the size of
the antenna that can be placed on the tower because of structural
constraints. Cupertino waives the height limit for vertical
antennas of 2 inch diameter or less. This encourages antennas
consisting of a plain pole, with no protusions, but perhaps
somewhat taller than what would otherwise be used. As far as I
know, both the city of Cupertino and the amateurs are reasonably
happy with this compromise.
HEIGHT VS GIRTH (electrical):
For optimum operation, a horizontal antenna should be half
as long as the wavelength in use and a vertical antenna should be
half as high as the wavelength. The names of the bands indicate
the wavelength hence the recommended antenna lengths/heights for
the 160 meter, 80 meter, 40 meter and 20 meter bands are
(converting from the metric system) 260, 130, 65, and 33 feet
respectively. For horizontal antennas, it is recommended that
they be at least as high as they are long. These numbers put
into perspective the degree of compromise of a 30 foot height
limit. If one had available the full height, then a "zero girth"
antenna would be possible consisting of just a vertical wire tied
to a tall tree branch. It would occupy essentially no lot area
and be nearly invisible.
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Page 13 of 15
The Misuraca property has no significant trees, so the girth of any
antenna would have to be dictated by structural considerations, so
it would have to be more than just a wire. In order to get
operation on the long wavelengths with reasonable heights, it is
possible to decrease antenna height by increasing its girth in one
of several ways (which can be used singly or in combination).
1. Make the diameter of the vertical antenna larger;
2. Add a "top hat" (referred to in these proceedings as a halo);
3. Bury a lot of wires in the ground around the base. Of course,
option 3 doesn't increase visual girth, but it requires a large
lot, which Mr. Misuraca doesn't have. However, it is always
better to have more height even if there is no constaint on girth.
HEIGHT VS GIRTH (structural):
In discussing structural tradeoffs, it is necessary to
distinguish between guyed and unguyed structures. In the case of
unguyed structures, wind resistance becomes one of the most
important factors. Adding a top hat adds considerable wind
resistance. I haven't done any rigorous calculations, but I
would estimate that in nearly all cases it would be better to
make the antenna a little taller in terms of the performance vs.
wind resistance tradeoff. Increasing wind resistance forces the
use of larger diameter tubing (or thicker wall tubing, or
stronger tubing). If larger diameter tubing is used (as is
usually the case), the wind resistance is further increased by
the increase in diameter, which requires still larger diameter
tUbing. In any case, the proposed antenna has not only a top
hat, but numerous nonstructural electrical elements that greatly
increase its wind resistance. It is no surprise that guys are
required.
Once the decision to use guys has been made, then wind
resistance is much less of a constraint, if sufficient real
estate is available for the guys so that the angle of the guys
with respect to the ground is less than about 60 degrees. At 60
degrees, the distance from the guy anchor to the base has to be
half the height of the guy attachment point to the structure. In
the Misuraca case, guys could be attached to the house and
garage, thereby raising the anchor points 10 feet or more above
ground, which further helps the situation. It appears from a
cursory look at the map that sufficient guying for as much as 70
feet of height may be possible. with sufficient guying, the
antenna diameter can be made quite small. Again, adding a top
hat is a bad idea due to wind resistance. Torsional forces of
the top hat limit the ability to use small diameter tUbing. If a
plain pole is used, there is essentially no torsional force.
Instead of 2 inch (or 1 1/2 inch) diameter all the way to the top
as with the GAP DX-IV, it would typically taper down to 3/8 inch
at the tip.
It is also worth noting that most commercial antennas use
thin wall (typically .058 inch) aluminum tubing, because of a
number of reasons that are non-essential (at least for vertical
antennas). The overall antenna diameter can be decreased to some
extent by using thicker wall tubing and/or stronger metals such
as copper clad stainless steel. For example, 1 inch diameter
tubing with 1/4 inch wall is about as strong as 2 inch diamter
tubing with
(
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Page 14 of 15
ANTENNA SIZE/~EIGHT VS. INTERFERENCE AND EMF SAFETY:
As a general rule, a taller and/or larger antenna of the
type we are discussing will have lower electromagnetic fields
(for a given transmitter power) in nearby areas on the ground
than will a miniature antenna. This is probably counterintuitive
to the impression of the average non-technical person.
Furthermore, the better the antenna works, the less transmitter
power will be needed, further decreasing the fields. I am not an
expert on biological effects of EMF, and the people who are
experts frequently disagree among themselves, but there seems to
be agreement that EMF at cellular phone frequencies and power
line frequencies is far more dangerous than the HF radio
frequencies in question here.
DAYTIME VS. NIGHTIME BANDS:
The bands generally used for long distance communications
range in wavelength from 160 meters to 10 meters. The applicant
brought up the complicated issue of sunspot numbers while
ignoring the straightforward issue of daytime vs. nighttime
operation. As a general rule, long wavelength bands are usable
only at night and are better in periods of low sunspot activity,
such as we are now experiencing. Short wavelength bands are
usable mainly during the day and only during periods of high
sunspot activity, such as we will experience around the turn of
the century. As previously mentioned, long wavelengths tend to
require longer/ taller antennas. This suggests the concept
explained in the following section on retractable antennas.
RETRACTABLE ANTENNAS: The fact that long wavelength nighttime
bands require large antennas suggests the following scenario:
During the day, when long wavelength bands are unusable, the
antenna is retracted. At night, when these bands are usable, the
antenna is extended to operational size, but the antenna cannot
be seen due to darkness. A seemingly ideal paradigm,
unfortunately not proposed by the applicant. For short
wavelength bands, the existing 31 foot antenna is actually quite
adequate, so there should not be a problem there. I am aware of
a case where an amateur used a tower retractable to 11 feet
(instead of the usual 22 feet) for a Yagi for the short
wavelengths. He got a use permit from the city that allowed him
to crank the tower up only at night. During periods of high
sunspots, short wavelength bands can be usable as late as
midnite, so this was considered worth the trouble. Mechanically,
rather than a telescoping antenna, it would probably be better to
pivot the whole antenna at the base. I have heard of an amateur
who used a modified garage door opener to make an automatic
pivoting antenna. Alternately, muscle power can be used. Note
that a top hat (as in the proposed antenna) complicates pivoting
the antenna since it can no longer be laid completely flat
(unless a trench is dug for the top hat to sit in). Many
building departments waive the 80 MPH wind requirement of the UBC
for retractable antennas based on the idea that the user will be
smart enough not to try to raise the antenna during a severe
storm. For the same reason, the guys can often be dispensed with
or simplified; the usual rule of thumb is to design for 50 MPH
winds, when up. Keep in mind that none of the retractable or
pivotable schemes is cheap and easy to do.
(
(
Page 15 of 15
SECTION 6: CONCLUSIONS
It has been shown that decreasing sunspots will force the
applicant to rely heavily on 80 meters. He will take a big hit
in performance by continuing to use his 31 foot antenna. The
proposed 46 foot antenna will a1lieve this problem as well as
give him the next best thing to a Yagi on 20 meters. A
discussion has been presented of various creative ways to solve
the technical problems without creating visual ones. All of
these substantially inconvenience the applicant. It would appear
that the current proposal is probably a reasonable compromise of
all concerns.
-----------------------------------------------------------------
APPENDIX: A STRAWMAN ANTENNA
It is not my job to furnish the applicant with a turnkey
antenna design solution. However, I think is it useful to
outline a strawman as an "existence proof" that an effective
antenna can be built without the clutter present in the GAP DX-
IV. Perhaps something like this will come onto the market in the
future.
The author once had a job designing HF marine radios. These
covered the marine bands from 2 to 12 or 2 to 16 MHz which are
very similar to the 160 thru 20 meter bands (1.8 to 14 MHz.) in
question here. The standard station on board a boat consisted of
a plain fibreglas coated aluminum pole (20 to 40 feet long)
connected directly to the marine radio's automatic antenna tuner.
(The fibreglas was necessary to prevent the sea water from
corroding the aluminum). Essentially, the automatic antenna
tuner performed the same function as the non-structural elements
hanging off the side of the GAP antenna. Hence what we would
have for this application would be just a plain aluminum pole
with an automatic antenna tuner in a weatherproof box on the
ground at the base of the antenna. This is shown in Fig. 2.
There are a couple of complicating factors here that make a
slight increase in complexity of the antenna worth considering.
If the antenna height exceeeds 33 feet, there will be a loss of
effectiveness on the 20 meter band only. This can fixed by
operating the top 33 feet as an end fed 1/2 wave on that band
using a matching network located 33 feet below the top and
running coax down the inside of the lower portion of the antenna.
The matching network could probably fit inside a 2 inch diameter
tube 6 inches long. (Fig. 3) A relay would bypass this network
when other bands were in use. If a somewhat larger tube (say 6
inch diameter by 12 inches long) could be tolerated at this
location (33 feet below the top), a "center-loading" inductor
could be included to improve efficiency on 160 and 80 meters.
(Fig. 4) This would be more effective than the raised feed of
the GAP antennas. I would recommend a total height of 45 to 65
feet and no top hat. Finally, it should be noted that when the
author once constructed an end-fed half wave vertical on 20
meters with the top at around 45 feet. It compared very
favorably with a 2 element Yagi installed at the same location at
a height of 40 feet. This kind of high efficiency vertical
should not be confused with a quarter wave ground mounted
vertical antenna with a mediocre ground plane which is a cut
below in performance.
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