I think you're still missing the point Bill. Rest assured that I was
there on the day they talked about majority rule and one of the points
that has been stressed ever since day 1 is that majority rule doesn't
give the majority the right to stomp on any minority. Some minorities
are even specially protected (women, minorities, and in some situations
gays and lesbians for example). The majority can say "we want to run all
the Jews out of town" (I'm Jewish), but that doesn't mean that they can.
The majority does get a lot of rights, but one thing they DON'T get is
the right to stomp on the rights of minorities. In this case we're the
minority and the rights we have that the majority CAN'T stomp on are
spelled out in PRB-1. We MUST HAVE REASONABLE ACCOMODATION. The majority
CAN'T decide that they don't like towers and ban them.
That guy who paid $20K for a tower permit was not reasonably accomodated
and probably has a cause of action (no I'm not a lawyer, but I'm married
to one and some of it has rubbed off) against the town. I believe I
heard that the FCC held that a $5 permit fee for a $100 dish antenna was
unreasonable. I do know that having the permit fee exceed a certain
percentage of the cost of the device or service is unreasonable.
Reasonable accomodation will vary with the needs of the amateur, the
nature of his or her property, and many other things. While the local
authorities don't have to give the amateur everything he desires, they
must accomodate the amateur's particular needs (at least that's what
Marchand v. Hudson says). On a 1/2 acre residental lot what can be
reasonably accomodated is different from a 100 acre plot in the
wilderness. PRB-1 only allows the local community to regulate amateur
towers for "...health, safety, and the general welfare of the community".
In my particular situation, I inquired at the town hall what the regs
were and they told me. I decided that the regs were reasonable enough
that I decided to purchase the property. After taking out the building
permit (granted) for a fee of $110, two of my neighbors (not abutters)
challenged the permit. The case ended going up to the State Supreme
Court and then back to the ZBA for further hearings. The timeline took
over three years to play out and about $25K in legal fees for me.
Luckily we all won this one, although I got stuck footing most of the
bill. The end result is that I'm up on the air and all of you have the
Marchand decision (currently the strongest PRB-1 decision on record) to
use. While it's not a US Supreme Court Decision which would be binding
everywhere, most state courts take serious notice of another state's
Supreme Court Decisions. CJ Brock (Chief Justice of the New Hampshire
Supreme Court) quoted Pentel (the first real big PRB-1 decision from a
US Circuit Court) in Marchand. That decision wasn't binding in NH, but
was noticed by the Court. Also noticed by the Court were the bad PRB-1
decisions allowing the local communities to do the balancing. Marchand
rejected these arguments (properly IMHO) and ruled that the FCC already
did the balancing.
As far as neighbor's rights go, they DON'T have a right to dictate that
you or I can't have towers, even if the majority says so.
Just my $.02,
73 and peace, Jerry, K0TV
Bill Turner wrote:
>On Thu, 14 Aug 2003 09:46:02 -0700, Jim Lux <email@example.com>
>>For example, a majority may decide that
>>they want open sewers in their city (cheaper, easy to maintain, they like
>>the third world appearance, who knows.. they're the majority). Such a
>>change would likely be prohibited on the basis of public health.
>You argument is fallacious for the simple fact that a city majority
>can be overridden by a county majority, a county majority can be
>overridden by a state majority and a state majority can be overridden
>by a federal majority.
>Perhaps you were absent the day that was covered in school.