PA Zoning board. PLEASE HELP!

[Timaaay]

Hi to all. I'm hoping someone may be able to help or offer some insight with my local Zoning board. I am a Federally licensed Amateur Radio operator. I moved to PA a few years ago. I am involved in MARS (Military Axillary Radio System), I served as a direct link to Andrews Air Force Base during providing emergency communications after the disaster in Haiti. We also help the military and soldiers by providing a network of around-the-clock posts to "patch" soldiers (throughout the world) through and make phone lines available for them to call loved ones from anywhere they may be. I'm involved in RACES (Radio Amateur Civil Emergency System) and occasionally use Amateur Radio for enjoyment as a hobby. This may become complicated so I'll be as short and accurate as I am able.
My story: In August, 2010, I submitted a zoning permit to erect a 70 foot antenna support structure on my 2+ acre, heavily wooded lot. This is quite conservative size as it is just above tree level. The antennas MUST be above tree level to be effective (many tests were done to come to this conclusion). I was verbally rejected and told "no antenna towers are allowed on residential lots." I advised the board that Federal law (known as PRB-1) FCC: Wireless Services: Amateur Radio Service: Releases: PRB-1
Federal Code of Regulations 47CFR §97.15 47 CFR §97.15(b) (1985)
and PA State Senate bill 884 (act 88) PA Act 88
state they may not regulate or preclude Amateur Radio antennas or communication and MUST reasonably accommodate me.
I was rejected because, I was told, "It is a use not provided for." I requested the township write an ordinance to cover amateur radio antennas.
After a consult with a very prominent attorney whose field of expertise lies in this area, I was advised to present the local zoning board with more than a dozen case law findings from state supreme courts and Federal courts that have consistently found Amateur Radio antennas to be "accessory uses" of residential property and as such, a zoning permit should be issued as a matter of "right."
I presented this to the board at the December 2010 executive meeting. They reviewed the documents and asked to be excused to have a private "executive meeting". When they emerged, I was told by the township solicitor that "The board and I have discussed this and have decided to accommodate you." He further advised me " I will have the zoning officer extend your existing application (as it was due to expire) and you will have your permit in January or February." There was a lot of smiles and handshakes and I was even approached by a member asking me to contact the county emergency coordinator.
Not a rich man, I spent (literally) my life savings and even sold personal possessions to fund this project. I ordered the necessary antennas, rotators, cables, and even pre-paid a contractor for excavation and cement.
In late February, I received a phone call from the zoning official, expecting to be told my permit was ready, I was advised they had "changed their mind" and now all "ham radio antennas are to "conditional use only." This involves fees of nearly $2,000.00 in an escrow account as a "down payment" and I've been told the fees may actually be substantially higher.
I must follow a 7 page report that I MUST comply with this "conditional use" permit with reports and studies, including, but not limited to:
-Traffic analysis report: "A 24-hour/day count of all vehicles on the roadway for a period of 7 days.
-Environmental impact study
-Vegetation report
-Geology survey
-Natural feature analysis
-Soil analysis: Soil Survey of the US Soil Conservation Service
-Topography Survey: with contour lines every 10 feet
-Vegetation study, including all dominant trees, plants and characteristics of each.
-Community impact analysis
And many many more. Who could afford this? Certainly not I. I would never have spent my life savings on this project (in an effort to provide a public service and help our military) had the township not promised that it "would issue my permits" in December.
I now have several thousand dollars worth of equipment and lack the funds to use any of it. Isn't there a statute that would hold the township to keep it's promise? I certainly believe I've suffered damages due to this, as the only reason I purchased the equipment was because of a promise from the township board and solicitor. Would this fall under some "reliance" type of law? Detrimental reliance? Estoppel?
-What is the name of your state Pennsylvania

 

[Timaaay]

Letter to township

Can someone advise me if this letter to the township seems OK?
I'm no lawyer, so all comments are welcome.

Delaware Township Board Of Supervisors,

As you may know from my appearance at past township meetings, I have proposed to erect an Amateur Radio antenna support structure (primarily to provide emergency communications) at my residence, located at 126 Squirrel Road in Dingmans Ferry. I am a federally-licensed Amateur Radio operator and as such, have federal, state and public law protection as well federal pre-emption with regards to local land use regulations.

I have been advised that Delaware Township has recently included “ham radio antennas” as “conditional uses” and subject to standards specified in section 110.9 with fees starting at nearly $2,000 dollars (possibly more) as a requirement under this action.

I have been unanimously advised (and supplied a lot of case law at the township’s December meeting) that the courts, State, Supreme, and Federal, have recognized Amateur Radio antennas and support structures as “accessory uses” of residential property for nearly 100 years now and a standard zoning permit should be issued as a matter of “right.”

In recent conversations with The Federal Communications Commission, The American Radio Relay League and a telecommunications attorney, I’ve been advised to bring a few considerations to the attention of the board.

FCC reconsideration of PRB-1 in 2000 that addresses excessive fees. It states in part:
*
* 7. In PRB-1, the Commission held that "local regulations which involve placement, screening, or height of antennas based on health, safety, or aesthetic considerations must be crafted to accommodate reasonably amateur communications, and to represent the minimum practicable regulation to accomplish the local authority's legitimate purpose." The ARRL's second request in its Petition concerns imposition of excessive costs for, or the inclusion of burdensome conditions in, permits or variances needed prior to installation of an outdoor antenna. As it did in its petition for rule making, ARRL requests a ruling from the Commission that imposition of unreasonable or excessive costs levied by a municipality for a land use permit, or unreasonable costs to fulfill conditions appended to such permit, violates PRB-1. In our Order, we concluded that the current standards in PRB-1 of reasonable accommodation and minimum practicable regulation are sufficiently specific to cover any concerns related to unreasonable fees or onerous conditions. With these guidelines in place, an amateur operator may apprise a zoning authority that a permit fee is too high, and therefore unreasonable, or that a condition is more than minimum regulation, and, therefore, impracticable to comply with.

*The link to that particular reconsideration of PRB-1 is:

FCC: Wireless Services: Amateur Radio Service: Releases: PRB-1
Page 2

Code of Federal Regulations-Title 47: Telecommunications
47 CFR § 97.15


(b) Except as otherwise provided herein, a station antenna structure may be erected at heights and dimensions sufficient to accommodate amateur service communications. (State and local regulation of a station antenna structure must not preclude amateur service communications. Rather, it must reasonably accommodate such communications and must constitute the minimum practicable regulation to accomplish the state or local authority's legitimate purpose. See PRB1, 101 FCC 2d 952 (1985) for details.) [64 FR 53242, Oct. 1, 1999]

The position of a Radio Amateur in the permitting process is uniquely enhanced by a Congressional finding (the supreme law of the land) that “reasonable accommodation should be made for the effective operation of Amateur Radio from residences, private vehicles and public areas, and that regulations at all levels of government should facilitate and encourage Amateur Radio as a public benefit.”
Public law 103-408, § 1(3) October 22, 1994

The township zoning of amateur radio support structures and antennas as “conditional uses,” with a public hearing, notification to residents and approval by the township is an attempt to balance interests and not consistent with existing Federal regulation.

ORDER (FCC 99-2569) In the Matter of Modification and Clarification of Policies and Procedures Governing Siting and Maintenance RM-8763 of Amateur Radio Antennas and Support Structures, and Amendment of Section 97.15 of the Commission's Rules Governing the Amateur Radio Service.


7. Petitioner further requests a clarification of PRB-1 that local authorities must not engage in balancing their enactments against the interest that the Federal Government has in amateur radio, but rather must reasonably accommodate amateur communications. We do not believe a clarification is necessary because the PRB-1 decision precisely stated the principle of "reasonable accommodation". In PRB-1, the Commission stated: "Nevertheless, local regulations which involve placement, screening, or height of antennas based on health, safety, or aesthetic considerations must be crafted to accommodate reasonably amateur communications, and to represent the minimum practicable regulation to accomplish the local authority's legitimate purpose." Given this express Commission language, it is clear that a "balancing of interests" approach is not appropriate in this context.

The link to that particular reconsideration of PRB-1 is:
FCC: Wireless Services: Amateur Radio Service: Releases: PRB-1
Page 3

H.R.81 -- Amateur Radio Emergency Communications Enhancement Act of 2011

SEC. 2. FINDINGS.

(7) Amateur Radio, at no cost to taxpayers, provides a fertile ground for technical self-training in modern telecommunications, electronic technology, and emergency communications techniques and protocols.
(8) There is a strong Federal interest in the effective performance of Amateur Radio stations, and that performance must be given support at all levels of government and given protection against unreasonable regulation and impediments to the provision of these valuable communications.




I have been reluctant to involve third parties directly as I believe we should be able to come to a mutually satisfactory middle ground. I had thought this had been previously decided. My wife and I had been told in December, after a “executive meeting,” that “We have decided to accommodate you.” It was further stated by Mr. Magnotta that “The board and I have decided to accommodate you, I’ll have Duane (Duane Kuhn) extend your existing application and we’ll give you your permits in January or February.” I’m completely baffled as to what may have happened between that time and now. After being promised that both the board and the township solicitor had discussed this and decided they were “going to issue my permits”, I’ve spent a substantial amount of money as a direct result of this promise and sold personal possessions to fund this project.

I offer some proposals toward negotiating in good faith with the board.

1. A Different Category. I would request Amateur Radio antennas be moved to a different category. Why? Because the others within this category involve income to the applicant as a result as the grant. Amateur Radio is, on the other hand, a public service.(see Public Law 103-408)

2. Waiver for Standard Installations. By submission by the applicant of manufacturer’s specifications for installation and a showing that the applicant can erect to those specifications.”


3. Standard Installation, Standard Cost. I submit that basically all Amateur Radio installations are alike. This is just a standard tower and antenna, the review should take no longer than other accessory structures. While cost recovery may be justifiable, profit making is not.


Page 4

4. Waiver below 100 feet. If the board doesn’t want to move Amateur Radio support structures to a different category, I’d respectfully ask to insert a definition of “Amateur Radio support in excess of 100 feet” or perhaps “Amateur Radio support structures extending more than 20 feet above the surrounding tree line.”

5. Waiver for Larger Lots. I’d ask that Amateur Radio support structures be exempt on lots of two acres or more.

6. Change the Effective Date. While the townships goal may be laudable, I’ve been advised that as proposed, it is presently not in conformance with existing Federal and State law. I’d ask that text be added such as “This ordinance with respect to Amateur Radio antennas shall become effective at such time as Federal law shall no longer require the limited pre-emption of local zoning law, 47 CFR §97015”

7. A Township Ordinance Specifically for Amateur Radio. Many, if not most townships, cities and counties have such ordinances on their books. There are several sources that can guide a zoning board toward this goal. A list of sample ordinances can be found at the web-site of The American Radio Relay League. The ARRL has legal staff on-hand that can answer questions and guide a board through the process. There are other sources where a township can secure a “pre-made” ordinance that complies with Federal and State law at a very modest cost.