Ham Radio Antennas and Local Zoning Ordinances: Understanding Height Restrictions

1. Ham Radio Antennas and Local Zoning Ordinances: How High Can You Go? By Wayne Greaves WØZW

2. Topics • Public vs. private zoning regulations • Federal Preemption PRB-1 • What the law requires • Selected court decisions • Examination of the Ruidoso ordinance • What are your options • Resources

3. Zoning Regulations • Local government zoning ordinances • Regulates land use for public benefit • Applies to all citizens in municipality • Covenants, Conditions & Restrictions (CC&Rs) • Private land-use regulation • Entered into “voluntarily”

4. Legal Environment Prior to 1985 • Widely divergent rules from community-to-community • Little consistency across zoning decisions relevant to amateur antennas • Building an effective amateur antenna system was often not possible in the face of hostile antenna ordinances

5. Federal Preemption PRB-1 • A Federal Order issued in 1985 which preempts the authority of state and local zoning laws regulating amateur radio antenna structures • Localities must heed its provisions • Does not apply to CC&Rs • Language subsequently issued as a Federal regulation (Title 47 C.F.R. §97.15)

6. Title 47 C.F.R. §97.15 97.15 Station Antenna Structures. “(b) Except as otherwise provided herein, a station antenna structure may be erected at heights and dimensions sufficient to accommodate amateur service communications.”

7. Title 47 C.F.R. §97.15 (cont'd) “State and local regulation of a station antenna structure must not preclude amateur service communications. Rather, it must reasonably accommodate such communications and must constitute the minimum practicable regulation to accomplish the state or local authority's legitimate purpose.”

8. Key Provisions • Municipalities must: • Reasonably accommodate amateur communications • Apply minimum practical regulation to accomplish the authority's legitimate purpose • Permit heights and dimensions sufficient to accommodate amateur communications

9. Justifying Antenna Height

10. Another Example

11. Selected Court Decisions

12. Fixed Height Limits • Bodony vs. Village of Sands Point [NY] • Applicant desired an 86-foot antenna structure • Zoning Board denied application citing 25-foot limit on “accessory buildings” • Court ruled that the 25-foot limit was clearly inadequate for Bodony's purposes and the Zoning Board action did not make a reasonable accommodation and therefore is preempted

13. Reasonable Accommodation • Pentel vs. City of Mendota Heights [MN] • Applicant provided technical documentation why her proposed 68 ft. tower accommodated her specific communications needs • City denied permit stating no factual findings or giving no reasons for the denial • Court ruled against ordinance as it was applied finding that it did not reasonable accommodate amateur radio communications

14. Attempt a Satisfactory Compromise • Palmer vs. City of Saratoga Springs [NY] • Palmer applied for a special use permit allowing a 47 ft. retractable tower (allowed limit was 20 ft.) • Palmer agreed to many concessions, but the Planning Board finally rejected his permit request more than 2 years after the initial application • Court found the Board never tried to work out a satisfactory compromise and negotiations were strictly one-sided; ordered grant of application

15. Would the Ruidoso Antenna Ordinance Satisfy a Legal Test?

16. Ruidoso Ordinance: Permitted Accessory Use, R-1 District (7) Amateur radio (HAM) transmitting and receiving facilities that do not exceed the following standards: a. Maximum height of each antenna: sixty-five feet from ground to top of antenna; b. Maximum height of each support structure: two-thirds of height of antenna; c. Maximum width of support structure: two feet on any side, and provided that no antenna shall protrude laterally beyond said support structure; d. Maximum number of antennas: one;

17. Ruidoso Ordinance Fails Test!

18. A Better Ordinance 60.70.20 Exempt from regulations in this section: “Amateur radio facility antennas, or a combination of antennas and support structures seventy (70) feet or less in height [...] Radio facilities not meeting the requirements of this exemption are considered non-exempt, and must comply with Section 60.70.45.” 60.70.45 “Non-exempt amateur radio facilities may not be erected until a valid building permit has been obtained from the City of Beaverton.” City Of Beaverton, Oregon Municipal Code

19. What Can a Ham Do • Fight - Fight City Hall to put up your antenna • Flight - Move somewhere with more favorable regulations • Fume - Complain at the local ham club • Hide - Set up a stealth antenna • Rule - Work to change the ordinance

20. Change the Rules! • Change an antenna-hostile ordinance into an antenna-friendly ordinance • Requires commitment and perseverance • Must have a dedicated champion

21. A Road Map for Change • Prepare – gather information • Plan – design strategy • Execute – put plan in motion • Persevere - deal with set backs

22. Prepare • Obtain sample ordinances • Contact experts at ARRL • Obtain white papers & court decisions • Locate spokespeople who can testify

23. Plan • Learn structure of the Village government • Learn process for amending Ordinances • Understand timing constraints of committee and city council meetings • Package proposal to present to allies on City Staff and in the City Council

24. Execute • Work with city staff to gain buy-in for changing the ordinance • Get your champion to introduce the ordinance as “new business” • Make expert information available to council • Help your council champion to shepherd the bill through committees, work sessions, commissions, and council hearings • Keep troops engaged from the first committee hearing to final passage

25. Respectful letters, emails, and phone calls Amateur Radio program in the local schools News clipping of Amateur Radio contributions to the community Inviting public official to Field Day - showcase emergency field communications Things That Are Helpful • RACES or ARES participation in local Emergency Management • Amateur Radio Volunteer support for municipal events • Amateurs in elected or staff positions • Active local Amateur Radio club • People who know how to testify in public hearings

26. Failing to show up on time to meetings Testimony from hams living outside the city Careless or haphazard presentations Disruptive demonstrations in public meetings Things That Don't Help • Do not propose arbitrary restrictions that hostile council members and zoning committee members will seize • Name calling, bullying, and threats of litigation • Asking for too much or too little • Inappropriate dress at public hearings

27. Overcoming Objections • Property Value - Point out that no house next to a property with an antenna has had its assessment reduced • Safety - Point out that having an antenna support structure does not raise residential insurance rates • Aesthetics - Point out that higher is better and show photos to prove that tall antenna structures have less real visual impact than lower antennas • Needs of the Community - A local “balancing of interests” argument is not legal under PRB-1 • RFI – The FCC has sole regulatory jurisdiction on such matters. Point out that “higher is better”, the higher amateurs can put antennas, the less chance there is for RFI

28. Resources Antenna Zoning for the Radio Amateur by Fred Hopengarten, K1VR

29. More Resources • http://www.qth.com/antennazoning • ARRL PRB-1 Web page • ARRL Volunteer Counsel and Volunteer Consulting Engineer Programs • Antenna Height and Communications Effectiveness – A Guide for City Planners and Amateur Radio Operators, 2nd Edition, ARRL

30. Don't Give Up, Never Give Up!