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Precedent Setting Cases

Precedent Setting Cases Affecting Amateur Radio

There have been few published precedent setting Amateur Radio cases in recent years. Here are the cases which have been cited most frequently:

  • Schroeder v. Municipal Court of Cerritos, 73 Cal. App. 3d 841, 141 Cal. Rptr. 85 (1977) Appeal dismissed 435 US 990 (1978)
  • Gushcke v. Oklahoma City, Oklahoma, 763 F. 2d 379 (10th Cir 1985)
  • John Thernes vs. City of Lakeside Park, Kentucky et al, 779 F. 2d 1187 (6th Cir. 1986)
    See also Final Judgement: 62 Pike and Fischer Radio Regulation 2d, 284 E.D. KY 1987
  • Andrew B. Bodony v. Incorporated Village of Sands Point, New York et al (681 F. Supp. 1009 E. D. NY 1987)
  • William F. Bulchis v. City of Edmonds, Washington, 671 F. Supp. 1270 (W.D. Wash. 1987)
  • Izzo v. Borough of River Edge, New Jersey, et al 843 F. 2d 765 (3rd Cir., 1988)
  • MacMillan v. Rocky River, Ohio, 748 F. Supp 1241 (N.D. Ohio 1990)
  • Howard v. City of Burlingame, California, 726 F. Supp. 770 (USDC, N.D. Calif., 1989), affirmed 937 F. 2d 1376 (9th Cir., 1991).
  • D. R. Evans v. Board of County Commissioners of the County of Boulder Colorado et.al. 994 F. 2d 755 (10th Cir. 1993)
  • Sylvia Pentel v. City of Mendota Heights, Minnesota, 13 F. 3d 1261 (8th Cir. 1994)
  • Palmer v. City of Saratoga Springs, 180 F. Supp. 2d 379 (N.D.N.Y. 2001).
  • Marchand v. Town of Hudson, 147N.H.380 788 A.2d 250 (N.H. 2001).
  • Gerald Smith v. Board of County Commissioners, Bernalillo County, New Mexico, Smith v. Bd. of Comm'rs 110 P.3d 496 (N.M. 2005)
    View/Download as a PDF file  Additional information as reported by ARRL.
  • Snook v. City of Missouri City, Texas No. 03-cv-243, 2003 U.S. Dist.
  • Chedester v. Town of Whately, MA (KB1IPR) Superior Court, Franklin ss., Civil Action No. 03-00002, Hillman, J., November 22, 2004, (2004).
    Superior Court Judge said town misinterprets both state and federal preemption by arguing that the by-law does not restrict antenna height, "only towers as they are 'structures.'" Height limit of 35' found to be "an absolute and unvarying height restriction" and preempted. "A 35' height restriction would effectively mean that no radio communications would be able to be transmitted." Building permit reinstated.
  • Skinner v. Zoning Bd. of Adjustment
    193 A.2d 861 (N.J. Super Ct. App. Div 1963). Ordinance permitted towers up to 100’, but only in B-2, B-3 and IR zones. Upholds a 100-foot radio antenna tower used in “his hobby” as an accessory use customarily incidental to the enjoyment of a residential property.
  • Dettmar v. County Bd. of Zoning Appeals
    273 N.E. 2d 921, 922 (Ohio Ct. Com Pl. 1971). Even an unusual customarily incidental use is permissible unless specifically excluded by a zoning restriction. [Note: After PRB-1, an amateur radio use could not be excluded entirely.]
  • Town of Paradise Valley v. Lindberg
    551 P.2d 60, 61-62 (Ariz. Ct. App. 1976). The erection of a ninety-foot amateur radio tower in conjunction with a homeowner’s hobby as a ham radio operator is a permissible accessory or incidental use.
  • Borowski v. Burbank, IL (K9RB)
    101 FRD 59 (ND IL, 1984). Pre-PRB-1, but granted class action status against a town in Federal Court, in an antenna case. May have an unusually useful positive effect when a ham’s lawyer attaches it to the letter pointing out that the village ordinance fails to comply with 47 CFR §97.15(b).
  • Parma Heights, OH v. Haase (K8VI)
  • (Parma, OH Municipal Court, 1992), Unpublished (see www.antennazoning.com, Amateur Radio, Legal Library). Ham held a building permit for an antenna which could be raised from 20' to 50'. Charged with criminal misdemeanor violations ordinance by violating a Zoning Use ordinance and a Public Nuisance ordinance. Court found ham not guilty of both. [Despite RFI, ham's] "operation of an amateur radio station does not constitute a public nuisance. It does not wrongfully invade the use and enjoyment of property and personal rights and privileges of the general community. . . . The nuisance herein results from methods authorized by legislative grant. The Defendant’s exercise of that grant does not constitute criminal conduct."
  • Brower v. Indian River County Code Enforcement Board, FL (W4DKB)
    No. 91-0456 CA-25 (June 23, 1993), 1993 WL 228785 (Fla.Cir.Ct.).
    Structure: 68.88 feet, plus antenna, to total of 95.6 feet; 72.4 feet from neighbor’s property line. Absolute prohibition on towers over 70’. Ham erected without first attempting to obtain a permit. Held: Any application for a permit would have been futile (“a circular dead-end”). Ordinance facially void as an unvarying maximum height: “We agree with the Evans court's adoption of prior rulings in that case which concluded that flat prohibitions of this nature are not permitted, Evans, at 976” [Refers to Evans I].
  • Bay v. ZBA of New Canaan, CT
    1993 Conn. Super. LEXIS 2345 (Super. Court of Stamford-Norwalk, Sept. 9, 1993). Ham had lawful existing retractable 72-foot structure and proposed to add one antenna to it, as well as to install a new 57-foot vertical. Held: An amateur radio antenna is a customary accessory use; disregards Presnell v. Leslie. Good discussion of why Court adopts the majority view. Court finds that additional antenna may be placed 10 feet above present antenna (total 82’) due to interaction. Multiple antennas are customary and accessory. The height is necessary. Ham’s appeal sustained.
  • Kleinhaus v. ZBA, Cortlandt, NY (W2XX)
    Index No. 19396/95 (Supreme Court, County of Westchester, NY 1996, Lefkowitz, J.S.C.). 3/26/96 NYLJ 37, (col. 3), www.qth.com/antennazoning/ham/kleinhaus-sup-ct-decision.pdf or www.ezoom.net/w2xx/zoningdecision.htm
    Zoning code contained a 35' height limit. Applicant lived on 1.4 acre heavily wooded Westchester County property; applied for 120' structure and denied. FCC regulations found to have the force of statutes. Town required to accommodate amateur communications in a reasonable fashion; merely balancing town interests against Federal government's interests in promoting amateur communications is not enough. Denial of variance set aside as irrational, arbitrary and capricious. On remand to ZBA, 100' tower approved.
    www.qth.com/antennazoning/ham/kleinhaus-zba-final-dec-and-order.pdf
  • Landstein v. Town of LaGrange, 86 N.Y.S.3d, 166 A.D.3d 100 (2018)
    http://www.courts.state.ny.us/courts/ad2/Handdowns/2018/Decisions/D56872.pdf

    This case was about applying PRB-1 to a situation in which a municipality attempts to thwart the installation and maintenance of ham radio antennas by imposing excessive costs of the application process on the ham applicant for a permit. Landstein lost at trial and the appeal was filed in about 2015.

    The cost prohibition was the primary issue on appeal. The town attempted to assess its legal fees amounting to some $17,400 to Landstein, but later reduced that amount to $5,874. Also, the town assessed a continuing escrow balance of $1,000 to cover the Town's future consulting costs. The antenna at issue and the support structure was to cost no more than $1,000.

    The Appellate Court ruled that the town exceeded its state-granted authority by assessing the fees, and that the town also violated PRB-1 in doing so.

    Here, as discussed above, the Town did not limit the legal consulting fees charged to the petitioner to those necessary to the decision-making function of the Planning Board and the ZBA with respect to health, safety, or aesthetic considerations (see Freeman v. Burlington Broadcasters, Inc., 204 F.3d 311, 319-326 [2d Cir.] [field of radio frequency interference preempted by federal law, thus prohibiting the voiding of a municipal permit based on failure to comply with interference abatement requirements of permit] ). As such, the Town's action went beyond the "minimum practicable regulation to accomplish the state or local authority's legitimate purpose" (47 CFR 97.15[b] ). Thus, in requiring the petitioner to pay the subject fees, the Town's actions not only exceeded the authority granted to it by the State, but also were preempted by federal law (see Pentel v. City of Mendota Hgts., 13 F.3d 1261, 1263-1264 [8th Cir.]; Palmer v. City of Saratoga Springs, 180 F.Supp.2d 379, 384-386 [N.D. N.Y.] ). Just as the Town may not use its land use regulatory authority to construct "hoop after hoop" for the petitioner to jump through in order to erect his radio antenna tower (Palmer v. City of Saratoga Springs, 180 F.Supp.2d at 385), the Town cannot impose unreasonable expenses so as to create an insurmountable financial barrier to the pursuit of the project. In this context, not only must the consultant fees be reasonable in amount, but the underlying services must be necessarily related to those municipal **164 regulatory functions which are not preempted by federal law.

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