Interesting that your town distinguishes between ham and commercial
antennas. Our town does, too, sort of. There's a basic height limit of 35
feet, but it's waived for private, non-commercial antennas used for radio or
TV reception. Effectively, this means there's no height limit at all. I've
used this exception to get tower permits on three separate occasions, most
recently for a 115' Rohn 55 tower. The only requirement was use of a Ufer
ground in the base of the Rohn 55 tower, which I think came about due to
adoption of or changes in NEC codes between the time I got permits for the
second and third towers.
It's a different story for commercial towers. They are limited to 70' in
height and must be no less than one mile from any other commercial antenna
tower. This is not a limit on specific technology, but it definitely has an
effect on performance and coverage, which I think intrudes on FCC territory.
My guess is that it hasn't been challenged because the cell tower folks
haven't wanted to build one here. There are cellular antennas on a
grandfathered 400' tower on a nearby mountain and there aren't any other
suitable places that would provide better coverage.
Oh yeah. The astute reader (or lawyer) may have noticed the word "reception"
in the ordinance that allows ham towers. I did consult a lawyer about that
when I got the first permit, and she said it was a potential loophole that a
neighbor might potentially exploit to invalidate the permit, especially if
my transmissions caused RFI. But I don't think she was right about that. The
ordinance doesn't prohibit transmission, and doing so would clearly cross
the line with FCC pre-emption. The wording didn't concern our zoning
administrator when I applied for the third permit. Her only concern was
whether the ordinance allowed me to have more than one tower (tower #2 is on
the same property.) After a couple of days she decided it was OK. Her
rationale was that there aren't that many hams in our town so allowing it
wouldn't lead to a rash of towers springing up. I gently brought up PRB-1 in
that conversation, and she said that in her opinion it didn't prevent the
town from prohibiting antenna towers. And this was after the NH Supreme
Court upheld PRB-1 in a ham tower case! I think the legislature passed some
sort of endorsement of PRB-1 as well. But what the heck -- I got the permit
:-)
73, Dick WC1M
-----Original Message-----
From: Roger (K8RI) [mailto:K8RI-on-TowerTalk@tm.net]
Sent: Wednesday, September 01, 2010 10:03 PM
To: towertalk@contesting.com
Subject: Re: [TowerTalk] [ham-law] Important Cellular Telephone Tower
Decision
On 9/1/2010 6:23 PM, Wilson wrote:
> FYI
>
> KD8DEG Tom
>
> ----- Original Message -----
> From: Fred Hopengarten
> To: Wilson
> Sent: Wednesday, September 01, 2010 3:36 PM
> Subject: [ham-law] Important Cellular Telephone Tower Decision
>
>
> Colleagues:
>
> The case described below, with URL, might be used, in the right ham radio
> case, to stand for several propositions:
Here in our township it's zoned either farming, residential, or
commercial. You can put up all the ham towers you want as they are now
excluded up to 100' and no permit is required or given. Above 100' they
only rules are it must be properly engineered and they are quite
lenient. It must also meet setback rules for safety. IOW it has to fall
on your own property.
Cell towers (any commercial towers except for farmers) are no longer
permitted as they are commercial and would require a rezoning of that
area, which if out in the farming country is quite possible.
> 1. The Town has no right to "prefer" another technology, such as remote
> siting.
>
> 2. The Town cannot force you to remedy RFI.
>
> I like cases where the court describes an ordinance as "crossing the
line."
> Such cases give you a better idea of where the line is located!
There is a slight problem with this logic though. Each and every town
in the country could pass similar ordinances and they will stand until
challenged. If the town board/council is set in their ways it'll take
some with with a good grasp of the subject, law, AND DIPLOMACY to keep
it from going to court. This happens over and over with both the FAA
and FCC regs and has been supported in the courts a number of times.
Typically as in this example they failed when they got just a little too
specific.
73
Roger (K8RI)
> -Fred K1VR
>
> The United States Court of Appeals for the Second Circuit affirmed the
> district court's decision invalidating a local government's zoning
> ordinance which included a technological preference for DAS and microcell
> based systems. The case marks an important decision for the wireless
> industry which has long argued that municipalities have overreached by
> giving a "preference" to wireless carriers that use outdoor distributed
> antenna systems ("DAS") or "microcell" technology in residential areas,
> rather than "macrocell" technology. The Second Circuit Court of Appeals
> agreed with the wireless carriers, finding that a local zoning ordinance
> cannot dictate the type of antenna model and design that should be
utilized
> or the technology deployed within its jurisdiction.
>
> In 2007, the Town of Clarkstown (the "Town"), located in Rockland County,
> New York, enacted Local Law No. 14 (the "Ordinance") to govern the
> installation of wireless telecommunications facilities. The law was
> intended, according to the Town, to give it the ability to control visual
> and aesthetic aspects of wireless telecommunication facilities
development.
> Specifically, the Ordinance included a "preference" in residential areas
for
> smaller less intrusive antennas and applicants for new wireless
> telecommunication permits were pre-screened based on several factors,
> including their use of "preferred alternate technology," such as microcell
> or DAS.
>
> The Ordinance was challenged by four of the nation's leading
> telecommunications service Carriers: Verizon Wireless, Cingular Wireless,
> Sprint and Omnipoint Communications (collectively, the "Carriers"), on the
> grounds that the Ordinance was preempted by federal law. The United
States
> Court of Appeals affirmed the District Court's decision and held that the
> provisions of the Ordinance pertaining to: (1) radio frequency
interference;
> and (2) giving a "preference" to "alternate technologies" were preempted
> under federal law under the theory of field preemption.
>
> Radio Frequency Interference
>
> With respect to the Town's attempt to regulate radio frequency
interference,
> the Second Circuit reiterated its holding in the Freeman v. Burlington
> Broadcasters, that "Congress intended the FCC to possess exclusive
authority
> over technical matters related to radio broadcasting" and that "Congress's
> grant of authority to the FCC was intended to be exclusive and to preempt
> local regulations."See, 204 F.3d 311. The Second Circuit found that the
> provisions of the Ordinance were indistinguishable from that in Freeman,
> where that Court invalidated a decision by a municipal zoning board that
> conditioned a permit to construct and use a new radio tower upon the
> applicant remedying any resulting radio frequency interference from the
new
> communications facility.
>
> Outdoor DAS Preference
>
> In rejecting the provisions containing a material preference for
> "alternative technologies", the Second Circuit stated, "[these provisions]
> are also preempted because they interfere with the federal government's
> regulation of technical and operational aspects of wireless
> telecommunications technology, a field that is occupied by federal law."
> The Court stated that "the Ordinance clearly establishes a 'preference'
for
> certain wireless technology - DAS and microcell systems" and that, by
doing
> so, relegated other technology, such as macrocell, which otherwise meets
the
> FCC standards, "to an inferior and decidedly disadvantaged status." The
> Court went on to add that the Ordinance interferes with Congress's goal of
> facilitating the spread of new technologies and the growth of wireless
> communications service.
>
> Moreover, the Second Circuit Court of Appeals rebuffed the Town's claim
that
> it was simply regulating the aesthetic impacts of wireless communications
> facilities by establishing a preference for smaller, less visually
> obtrusive, wireless facilities. The Court stated that "[the Ordinance]
> crosses the line between zoning and land use regulation and the regulation
> of technical and operational standards. Even assuming that Chapter 251 is
> entitled to the presumption against preemption because zoning and land use
> are matters within a local government's traditional police powers, the
> presumption is overcome because Chapter 251 goes beyond those areas into
the
> areas of technological and operational standards."
>
> Conclusion
>
> The Second Circuit Court of Appeals' decision in Clarkstown affirms and
> clarifies the limits and distinction between Federal regulation and local
> zoning authority. Congress has imbued the Federal Communications
Commission
> with plenary authority over the technical aspects of the nation's wireless
> communications facilities development. While aesthetic impact of wireless
> communication facilities development remains within the police powers of
> local municipalities, such regulation cannot be achieved through means
that
> effectively regulate wireless communications technology. A local zoning
> ordinance, such as the Clarkstown Ordinance, must yield to Federal
> regulation, particularly where that ordinance contains a provision(s) that
> attempts to regulate radio frequency interference and provides for an
> express preference for certain technology (i.e., DAS, microcell, etc.).
>
> New York SMSA Ltd. Partnership v. Town of Clarkstown, 2010 WL 2598310 (2nd
> Cir. 6/30/2010).
>
>
http://go2.wordpress.com/?id=725X1342&site=lawoftheland.wordpress.com&url=ht
>
tp%3A%2F%2Fwww.ca2.uscourts.gov%2Fdecisions%2Fisysquery%2F39d25656-fe9d-4584
>
-a9d1-2ca25ea0d61a%2F7%2Fdoc%2F09-1546-cv_opn.pdf%23xml%3Dhttp%3A%2F%2Fwww.c
>
a2.uscourts.gov%2Fdecisions%2Fisysquery%2F39d25656-fe9d-4584-a9d1-2ca25ea0d6
>
1a%2F7%2Fhilite%2F&sref=http%3A%2F%2Flawoftheland.wordpress.com%2F2010%2F07%
>
2F06%2Fsecond-circuit-finds-federal-telecommunications-act-law-preempts-loca
>
l-wireless-ordinance-that-is-based-on-das-preference%2F%3Futm_source%3Dfeedb
>
urner%26utm_medium%3Demail%26utm_campaign%3DFeed%253A%2BLawOfTheLand%2B%2528
> LAW%2BOF%2BTHE%2BLAND%2529
>
>
> Fred Hopengarten, Esq. hopengarten@post.harvard.edu
> Six Willarch Road * Lincoln, MA 01773
> 781.259.0088 FAX 419.858.2421
> www.antennazoning.com
>
>
>
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