[TowerTalk] "As Applied"

[Fred Hopengarten]

This is a technical question of law.  It is probably appropriate for
lawyers only.

A town is arguing that PRB-1 refers to "regulations" and says that if the
"regulations" allow accommodation (by variance only), then the ham lacks
an argument based on PRB-1.The Town denied a variance and no antenna was
permitted at all, on the grounds that being above the trees made it
"visible."

I say that if, in consideration of  "the regulation as applied," the
Board never offers a compromise in negotiations, the public hearing or
anywhere else, the accommodation test is failed.

Got any favorite cases I should cite in the brief (due late this week)
that say, in effect, "where no accommodation is offered to the radio
amateur by the town, in response to the application, the accomodation
test, as applied, has not been satisfied"?   

Got any cases that stand for the proposition that denial merely because
an antenna is "visible" is illegal?

Yes, I shall do my own research, but someone here must have faced this
argument before.  What did your judge say and why?

Atty. Fred Hopengarten K1VR                        
hopengarten@post.harvard.edu
Six Willarch Road * Lincoln, MA 01773-5105
781/259-0088 *eFax 419/858-2421

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