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Restrictive Local Zoning Ordinance Proposed as Court Date in California Antenna Case Nears

12/19/2008

As his February 2009 court date approaches, Alec Zubarau, WB6X, of Palmdale, California, gets ready to battle his town after being ordered to dismantle his previously approved antenna system. The City of Palmdale has widened its opposition to Amateur Radio antennas by proposing an ordinance written to thwart the installation of antenna support structures throughout the city.

In 2005, Zubarau applied for a building permit to erect an antenna support structure on his property. The City approved his request, and building permit in hand, Zubarau installed a 22 foot tall crank-up tower (with an ultimate height of 55 feet), but did not place an antenna atop the structure. He also installed a 23 foot tall mast on his house, for a total mast height of 43 feet; he installed an inverted-V on the mast. In January 2007, he placed a 4 element 20 meter SteppIR antenna on the crank-up tower, and the neighbors started complaining to the City.

ARRL Southwestern Division Vice Director Marty Woll, N6VI, said that the neighbors' assertions consisted of what he called "the typical complaints: Aesthetic impact, diminution of property values and RF interference. The RFI complaints were general in nature; no direct evidence was shown of actual RFI, but the City's Planning Commission staff took the position that "based on anecdotal evidence presented by the homeowners, the transmissions occurring from the antenna are causing interference with electrical equipment in the surrounding neighborhood."

Woll said that after Zubarau installed the StepIR in 2007, the City of Palmdale, acting on a petition signed by almost 70 of Zubarau's neighbors, voted to revoke Zubarau's original building permit after he had relied on it in putting up his tower. "In order to gain a continuance, Zubarau told the Planning Commission he would remove the SteppIR, in essence, reverting his antenna configuration back to the way to it was before he installed the antenna" said Len Shaffer, WA6QHD, Zubarau's attorney. "At the next hearing, he was ordered to remove not only the antenna, but the support structure, as well."

The City's planning staff also pointed out that Zubarau's recently erected horizontal array extends three feet into the required 10 foot sideyard setback, and that the active array exceeds thirty feet in height beyond the limit in the ordinance.

"Because Zubarau's permit referred to the support structure as 'an antenna with cage (the base)' and the Planning Commission called it a tower antenna, everyone assumed it was indeed an antenna," Shaffer recalled. "When I pointed out to the Planning Commission that it was nothing more than a support structure and did not radiate, they were surprised. They asked if the support structure functioned as an antenna without the horizontal element. I told them it did not. Judy Skousen, Palmdale's Assistant City Attorney, told the Commission did not matter -- the permit and application was for a tower antenna and that is what it was. It did not matter if the nomenclature was added by city employees rather than Zubarau."

"After exhausting his administrative remedies, Zubarau challenged the action in the courts, aided by Shaffer," Woll said "The court date has been set for early February 2009." Woll continued, saying that the planning staff is placing the burden on Zubarau, saying that he has not submitted a site-specific engineering study showing that the operation or transmission from his house is not interfering with residential uses. The staff also notes that the FCC has failed to resolve RFI complaints in this matter, inferring that the City must act to solve them.

Palmdale Proposes Rewrite of Amateur Radio Antenna Ordinance

Shortly after issuing the permit revocation order, ARRL Southwestern Director Dick Norton, N6AA, said that the City of Palmdale began drafting an amended antenna ordinance that placed severe restrictions on all Amateur Radio antennas. "The draft was released just before Thanksgiving, and a hearing was scheduled for December 4," Norton said. "Prior to that hearing and at the request of Vice Director Marty Woll, N6VI -- who attended the Palmdale Planning Commission meeting along with about a dozen local hams and supporters -- ARRL General Counsel Chris Imlay, W3KD, wrote a lengthy letter to the City Attorney pointing out numerous flaws in the proposed ordinance and explaining why many of its provisions are void or unenforceable, being pre-empted by federal or state law."

In his letter, Imlay explained to the City that it is without authority to resolve RFI complaints; the jurisdiction is solely that of the FCC, as stated in the Communications Act of 1934, as amended. "The Federal Communications Commission has exclusive jurisdiction over radio frequency interference (RFI) matters, and technical matters specifically," he said.

Imlay pointed out that the "first specific concern in the draft ordinance is the statement that 'an Amateur Radio antenna, the operation of which causes unreasonable interference with electrical equipment in the surrounding neighborhood, is not compatible with that neighborhood.'"

This is "patently false," Imlay said, stating "there is no correlation between the presence of an outdoor Amateur Radio antenna, its height, configuration or placement and radio frequency interference (RFI) to home electronic equipment. As a matter of technical fact, the higher an antenna, the lower the electrical field in the horizontal plane of the home electronic equipment, and the less the likelihood of RFI in that equipment. Furthermore, the 'cause' of RFI is not the power of an Amateur Radio station, or the presence of an antenna, but rather the inability of home electronic equipment to reject unwanted signals. FCC regulations clearly obligate most home electronic equipment to accept any interference from licensed radio services as a condition of the permitted marketing and operation of that equipment."

Furthermore, in a Conference Report from the 97th Congress in 1982, Imlay explained that Congressional report "...is further intended to clarify the reservation of exclusive jurisdiction to the Federal Communications Commission over matters involving RFI. Such matters shall not be regulated by local or state law, nor shall radio transmitting apparatus be subject to local or state regulation as part of any effort to resolve an RFI complaint. The Conferees believe that radio transmitter operators should not be subject to fines, forfeitures or other liability imposed by any local or state authority as a result of interference appearing in home electronic equipment or systems. Rather, the Conferees intend that regulation of RFI phenomena shall be imposed only by the Commission."

Saying that the Conference Report went on to clarify "that the exclusive jurisdiction over RFI incidents (including preemption of state and local regulation of such phenomena) lies with the FCC," Imlay told the City of Palmdale that "Obviously, state or local regulations based on interference from one radio service to another would directly frustrate the intention and goals of the Communications Act of 1934, as amended."

Imlay said that in 1985, the FCC said that the "federal power in the area of radio frequency interference is exclusive; to the extent that any state or local government attempts to regulate in this area, [its] regulations are preempted." Imlay explained that the FCC concluded that the Federal regulatory scheme is so pervasive that it is reasonable to assume that Congress did not intend to permit states to supplement it.

According to Shaffer, the City of Palmdale does not think antenna support structures are "compatible" with the town's image. In a hearing of the Palmdale City Council earlier this year, the following exchange took place:

Councilmember Hofbauer: The Ordinance did not provide a prospective review. So, I mean, at what point do we? Let's, let's take this out of the context of his antenna. You've got a building that is down the street we don't like, do we retroactively revoke the permits and come and bulldoze it?

Mayor Ledford: That's not.

Councilmember Hofbauer: Because we don't like the paint color on it now?

Mayor Ledford: That's not the same.

Councilmember Hofbauer: No, it could be termed incompatible.

Mayor Ledford: I don't think the courts would support that. I think an antenna, like this, gives us that discretion."

"The Mayor told the Council that while, if a house was built that was not compatible with the neighborhood, they would not bulldoze it to the ground, this is 'just an antenna,' and they can get rid of it if they want to," Shaffer said.

Going to Court

Norton said that the ARRL's Amateur Radio Legal Defense and Assistance Committee has voted to contribute $5000 toward the cost of Zubarau's lawsuit against the City of Palmdale. "More than $1500 has already been contributed by clubs and their members from throughout the Southwestern Division, and this contribution from the League-managed Antenna Defense Fund will further help defray the expenses of preparing for the February 2009 court date," Norton said. "Len Shaffer is performing the legal work pro bono, but even just compiling the record to present in court can be costly."

ARRL Defense Committee Chair Jay Bellows, K0QB, said that although the case has not yet reached the appellate level, "The egregious nature of Palmdale's actions -- including ordering removal of a previously approved antenna tower -- the potential impact on a large number of amateurs and the existence of substantial local financial support from the ham community were significant factors in the Committee's decision to provide support for this case."

Bellows said he has participated in nearly 100 tower and antenna matters, from working with local hams and municipalities on tower ordinances to individual tower issues including litigation at the local and appellate level over the past 20 years. "If I've learned anything," he said, "I learned that a simple, clear explanation of who we are, what we do and why the antenna is needed are essential. Even if those steps are perfectly executed, the local authority (in this case, the City of Palmdale) has to be convinced that: 1. Federal law trumps the local zoning interests either generally or in the particular case; 2. The amateur is going to be politely persistent despite opposition from the locality; 3. The cost to the locality in time and treasure will exceed any political benefit in 'protecting its citizens from the scourge and despoliation of ugly Amateur Radio antennas.' Still, the single most important factor is that the amateur should always be the guy in the 'white hat,' no matter how reprehensible or offensive the actions of the locality or the opposing neighbors."

Norton went on to say that Woll has met with Palmdale hams and the management of the Palmdale Public Safety Department, who he described as "supportive of hams." Woll and Keith Hoyt, K6GXO, will meet with Palmdale's Planning Department and Assistant City Attorney in early January. "The proposed ordinance has been the subject of considerable discussion in Amateur Radio circles," Norton said. "Local hams, [as well as] Division and National League representatives are devoting considerable time and effort toward resolving the issue."



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