[TowerTalk] Neighbors "rights"

[Jerry Muller]

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 <jimlux at earthlink.net>
>wrote:
>
>>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.
>