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

[Barry Kutner]

Gerry:
Sorry to hear the grief has gone so far. I had a similar situation 
here about 10 years ago. Prior to moving to my present QTH, I 
checked to make sure the developer (new consturction) had no 
restrictions on antennas, and also the township.
The only restrictions in the twp's codes applied to "commercial 
radio and TV stations" which were zoned only in the industrial 
zoned section of town. So, we all figured, no problem since nothing 
was mentioned about towers in residential areas.
No prohibition, no problem. Right? Wrong.
My neighbor pulled the same thing - said if it's not explicitly stated, 
it can't be done. Fortunately, we prevailed at a township zoning 
board meeting, with the twp's lawyer reviewing the PRB-1 packet, 
with some able help from W3VL, one of the League's volunteer 
counsel. Also fortunately, my neighbor did not pursue it after the 
twp. ruled in my favor. It's a shame our legal system doesn't make 
the loser pay, as is the British system. Be a lot less of this 
nonsense going on...
GL/Barry

On 10 Jun 00, Gerald Smith wrote:

> 
> 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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--
Barry Kutner, W2UP              Internet: w2up@mindspring.com
Newtown, PA         FRC         alternate: barry@w2up.wells.com

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