In a message dated 98-07-02 17:20:45 EDT, you write:
<< > Whoa, Easy, big fellah. With that attitude you'd wind up with LESS
than
> zero. THEY hold all the cards. THEY tell you what is possible. THEY levy
> fines. THEY issue building permits.
>
> YOU got squat.
>
> Cheers, Steve K7LXC
> >>
>
>I disagree with K7LXC on this one. The installation was performed in
>compliance
>with all laws in existance at the time. The city has no grounds to complain
>now - "ex post facto" laws are prohibited by the US Constitution. Any
>reasonably competent lawyer could have won this one half asleep. We need
>to stop letting all these damn tin-horn dictators and busybodies restrict
our
>private property rights more and more each day. We're losing our rights
>because we we're letting it happen.
>
>Mike, K3AIR
>Council member, Saxonburg PA
When I learned about "ex post facto" concepts in high school about a hundred
years ago, I learned that the establishment cannot pass a new law TODAY and
prosecute you for violating it YESTERDAY. They CAN, however, prosecute you
for violating it TOMORROW. If the new law states "all towers must have a
building permit" then it would seem to me that if yours does not have one,
they can prosecute you if you have a tower in place without a building
permit after the law is in effect. I don't remember anything at all being
said about "grandfathering" anyone who has an existing but non-complying
structure. Grandfathering is a common practice but I am not at all sure it
is a "right" or a just a favor the government is granting you. There
certainly is no mention of "grandfathering" anything in the Constitution.
>>
A "building permit" is just that...a permit to build something (not
necessarily
a license to posess it). "Ex post facto" IS a point here. There was no
permit required at the time the tower was built. If a locality's zoning or
building code is changed later to require a building permit, then of course a
permit would be
required from that day forward for any construction done FROM THAT DAY
FORWARD. There was no violation in this case - the tower was legally
constructed at the time it was done. To require a building permit for
something already built and in place, that was constructed legally at the time
it was built, is clearly an example of passing a law today and then
prosecuting you for violating it yesterday. Ex post facto.
As attorneys will point out, a lot of court cases in this country are decided
on precedents. This case sets a bad one, and will eventually cost
someone big bucks to overturn when some other municipality decides
to try it but deny a permit. Yes, the amateur involved got off "cheap"
and in my opinion, was damn lucky. But it was still wrong for his
municipality to bring the whole thing up in the first place.
BTW, there are LOTS of precedents for grandfathering. Most zoning
codes provide for it.
I'm not an attorney, but I've dealt with these type of issues often as a
member
of my city council and have had the benefit of regular consultations with our
attorney. I stick to my original post. Also, I think we've finally beat this
one enough.
73, Mike K3AIR
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