[TowerTalk] Got Permit, No Covenants, No Problem - Think Again!

[Gerald Smith]

Dream location. That was the goal, a piece of land big enough for two
towers and beverages.

I began my search near Albuquerque in the spring of 1999. It is tough to
find a location without covenants and without undue government
restriction. You also have to consider your family need in terms of size
and style of house, not next to a motorcycle muffler research shop, etc.

I found the house in late May in the East Mountain section of
Albuquerque. A five-acre piece, fenced, no trees and the closest
neighbor was 400 feet away. The lot contained a 3,000 square foot,
five-year-old house. It was just perfect.

I had the realtor and the title company run checks and, indeed, no
covenants. Since the location is in an unincorporated area, I talked
with officials of the Bernalillo Country Building Department. I even
bought their zoning and building code. The officials said there was no
restriction on ham towers, not even a height restriction. My reading of
the zoning code confirmed their advice.

Still, I wanted another opinion about government restrictions. I asked
an attorney to review the county code. He confirmed no restrictions.

I retained a professional engineer and had drawings made for two, 130
foot Rohn 45 towers. After closing on the house and land, I submitted
the drawing with a building permit application in July 1999. On August
5, 1999, I was issued a permit for the towers.

I went about construction and buying materials. Then, on December 8, the
Building Official, along with three associates (guess they were afraid
of me) showed up, unannounced, and delivered a "Stop Work Notice." They
said they issued the permit in err and that Amateur Radio towers and
antennas are not allowed in any residential zone in the county. I
immediately retained a land use knowledgeable attorney. After two
letters and 60 days, demanding to know the details of their position,
the county said that in June 1999 an ordinance was passed permitting
Amateur towers in two non-residential zones (I was not told of the
ordinance when I met with the building officials prior to permit
application nor was it in the zoning code package I purchased). Their
logic is; if it is permitted in two non-residential zones, it is not
permitted in residential zones (convoluted, right?).

A provision in the county code allows an administrative appeal of a Stop
Work Notice to a county board of appeals and, on appeal, the Stop Work
Notice is stayed until the appeal is heard. We appealed and continued
construction. The county issued another Stop Work Notice; we appealed
and continued construction. I also filed for a declaratory judgement in
state district court asking the court to decide that Amateur Radio
towers must be allowed in residential zone and any law or ordinance to
the contrary is preempted by the FCC PRB-1 ruling.

The county filed for a restraining order in district court. I prevailed
and continued construction.

I have made a motion for summary judgement in this matter with the
court. It will be heard in late September. Meanwhile, the neighbors,
some 30 of them, have intervened in my suit against the county, claiming
nuisance and devaluation of property. The ARRL, through the offices of
Chris Imlay, has written an amicus (friend of the court) brief in my
support.

I expect to win this struggle, even if I have to appeal this matter to a
higher court. I will not let Amateur Radio go down the tubes on such
arrogant action on the part of a government. However, the legal bills
are huge. No, you don't get it back on prevailing.

A lawyer friend, C. D. Carter, W5IP, who does not practice in land use,
has set up a Tower Defense Fund to help defray my legal cost. If you
don't mind helping, here is his address. Make your check payable to the
"The Tower Defense Fund". Along with the fund, three trustees have been
appointed to make sure dispusements are proper. I promise; the money
will only be used for legal costs in my situation. If there is money
leftover (I doubt it) it will be retained for future hams having legal
costs just to use their property for our hobby.

Tower Defense Fund
C. D. Carter, W5IP
904 Four Hills Road SE
Albuquerque NM  87123

If you would like to contact me, please do. My Email is w6ter@att.net.
My telephone is 505-281-2721.

73, Gerry Smith
W6TER

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