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Court Rules Excessive Antenna Application Fees Violated Reasonable Accommodation




 
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Author Topic: Court Rules Excessive Antenna Application Fees Violated Reasonable Accommodation  (Read 799 times)
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Steve - K4HX
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« on: January 17, 2019, 08:19:55 PM »

From the most recent ARRL Letter:

Court Rules Excessive Antenna Application Fees Violated Reasonable Accommodation

Long-pending Amateur Radio antenna litigation that ARRL helped to fund has finally borne fruit. The Supreme Court of the State of New York, Appellate Division: Second Judicial Department has ruled in the case of Myles Landstein, N2EHG, that the Town of LaGrange, New York, not only overstepped its state-granted authority by assessing excessive fees, but violated the limited federal preemption PRB-1 in the process. PRB-1 requires municipalities and states to "reasonably" accommodate Amateur Radio antennas and to apply the "minimum practicable regulation" in handling Amateur Radio antenna applications. The ruling is slated to be published as a case decision. Landstein, who lives in the Bronx, had wanted to erect a 70-foot antenna support structure for a multioperator station in the Hamlet of Lagrangeville; the Town of LaGrange has a 35-foot height limit.

"This case, which goes back to 2013, was about applying PRB-1 to a situation in which a municipality attempted to thwart the installation and maintenance of ham radio antennas by imposing excessive permit application costs on the ham applicant," said communications attorney Chris Imlay, W3KD, who is familiar with the case. Imlay said the FCC has refused to clarify the cost-prohibition issue as it relates to PRB-1's "minimum practicable regulation" and reasonable accommodation provisions of PRB-1.

"The Town incurred more than $17,000 in legal consulting fees in connection with [Landstein's] applications, and informed the petitioner that he was required to reimburse the Town for these fees before any determination would be made with respect to the applications," the court decision recounted. "The Town subsequently, as 'an accommodation to the petitioner,' reduced the amount...to...$5,874, but also required the petitioner to maintain a minimum advance continuing escrow balance of at least $1,000 to cover the Town's future consulting costs..."

"We hold that, because the Town did not limit the consulting fees charged to the petitioner to those necessary to the decision-making function of the town's Planning Board and Zoning Board of Appeals, the town exceeded its state-granted authority by requiring payment of the consulting fees and, moreover, violated a rule promulgated by the [FCC]," the court concluded.

Given the significant delay, Imlay said both he and Landstein had lost hope that the case would ever be resolved in Landstein's favor -- and in the favor of radio amateurs in New York, generally -- much less be a case that would "create favorable precedent for Amateur Radio."

"ARRL originally was drawn to this case, because New York is the only state that, due to a very old case decision, has held that Amateur Radio antennas are not necessarily a 'normal accessory use' to residential real property," Imlay explained. "Because the issue in the case dealt with both that issue and the issue of cost prohibitions in the permitting process relative to the cost of the antenna installation, we decided to fund the case." Landstein lost at trial, and an appeal was filed in about 2015, for which ARRL provided memoranda of law about the cost-prohibition issue. "The antenna at issue and the support structure was to cost no more than $1,000," Imlay said.

The court concluded that 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 [and] 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..., but the underlying services must be necessarily related to those municipal regulatory functions which are not preempted by federal law."
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W4EWH
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« Reply #1 on: January 17, 2019, 09:28:05 PM »

Does anyone have info about what, if any, affect this case will have on other antenna cases in other states?

Bill, W4EWH
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Patrick J. / KD5OEI
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« Reply #2 on: January 17, 2019, 10:31:54 PM »

Glad to see the Feds slap that Tinpot Robber-BaronTM down/back into its place where it may serve/aid Citizens and not torment/financially abuse them.

Dallas TX uses a similar scheme to avoid permitting towers over 55FT. One must post a $300 nonrefundable hearing bond (no guarantee on the whims of the city) and then some city employees are sent around to all the neighbors to ask if they mind a huge tower going up. Guess what the result is each time. We have no HOA but the City, being quite diligent, steps in to foul the works when possible! FCC oughta do some slappin around here.

What effect it might have - it could help overturn other unfair and immoral practices. But that's an attorney question there!
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« Reply #3 on: January 17, 2019, 11:00:29 PM »

Glad to see the Feds slap that Tinpot Robber-BaronTM down/back into its place where it may serve/aid Citizens and not torment/financially abuse them.

Dallas TX uses a similar scheme to avoid permitting towers over 55FT. One must post a $300 nonrefundable hearing bond (no guarantee on the whims of the city) and then some city employees are sent around to all the neighbors to ask if they mind a huge tower going up. Guess what the result is each time. We have no HOA but the City, being quite diligent, steps in to foul the works when possible! FCC oughta do some slappin around here.

What effect it might have - it could help overturn other unfair and immoral practices. But that's an attorney question there!

The FCC is afraid of John Wiley Price.  Shocked
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KK4YY
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« Reply #4 on: January 17, 2019, 11:19:06 PM »

I believe this applies only in New York State, but it appears to apply to more than just antenna towers. Apparently, it puts an onus on all towns in NYS to justify the 'consulting' fees they charge petitioners for any special use permit or variance application from doghouse to subdivision.

I applaud the ARRL for backing this case. Smiley

Don
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Patrick J. / KD5OEI
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« Reply #5 on: January 18, 2019, 12:52:04 AM »

Glad to see the Feds slap that Tinpot Robber-BaronTM down/back into its place where it may serve/aid Citizens and not torment/financially abuse them.

Dallas TX uses a similar scheme to avoid permitting towers over 55FT. One must post a $300 nonrefundable hearing bond (no guarantee on the whims of the city) and then some city employees are sent around to all the neighbors to ask if they mind a huge tower going up. Guess what the result is each time. We have no HOA but the City, being quite diligent, steps in to foul the works when possible! FCC oughta do some slappin around here.

What effect it might have - it could help overturn other unfair and immoral practices. But that's an attorney question there!

The FCC is afraid of John Wiley Price.  Shocked
Haha no comment! The gentleman's antics are an astonishing example of many paradigms.

And yes thank you FCC for doing good!
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Radio Candelstein - Flagship Station of the NRK Radio Network.
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