Agenda - Planning Commission - 01/05/2017

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Zoning Bulletin October 25, 2016 1 Volume 10 1 Issue 20 i adverse visual impact on the neighborhood; involved a "height, mass, and latticework design" of a type associated with a "industrialized complex"; and posed a safety hazard to neighboring properties since its fall radius extended"well into those properties." DePolo appealed the ZHBA's decision. Rather than appeal to the state County Court of Common Pleas,DePolo filed suit in federal court. DePolo argued that the ZHBA's 65-foot variance and the zoning ordinance's fixed and firm height restriction of 35-feet,were preempted by federal law-specifically a ruling of the Federal Communications Commission the"FCC"):PRB-1. Under FCC regulations (47 C.F.R. § 97.15(b)),state and local regula- tions of a station antenna structure "must not preclude amateur service communications," but must "reasonably accommodate such com- munications and must constitute the minimum practicable regulation to accomplish the state or local authority's legitimate purpose."Under the FCC's ruling—PRB-1—"a zoning ordinance is preempted where a lo- cal municipality fails to apply land use regulation in a manner that rea- sonably accommodates amateur communications." The District Court dismissed DePolo's suit "for failure to state a claim."The court held that the Township's 65-foot variance was a valid and reasonable accommodation for DePolo's 180-foot tower request. It also held that the Township's local zoning ordinance was not preempted by PRB-1. DePolo appealed. Again, on appeal, DePolo claimed that the Town- ship's zoning ordinance, which prohibited any building taller than 35- feet, was preempted as enacted and as applied under the FCC regula- tions (47 C.F.R. § 97.15(b)), and the closely related FCC declaratory ruling known as PRB-1. DECISION:Appeal dismissed. The United States Court of Appeals, Third Circuit, also dismissed DePolo's suit,finding it did not have jurisdiction to hear it. In so concluding,the court first analyzed the law on regulation of am- ateur radio towers, looking to obtain a "complete understanding of [PRB-1's] application." The court noted that the federal government's interest in preserving amateur radio communications stems from the fact that such communication towers "afford the federal government reliable emergency preparedness, national security, and disaster relief communications."The result of the combination of federal interests and local land use interests is "a `perfect storm'for conflict because there is a direct correlation between a ham's antenna height and an ability to properly transmit signals," said the court. The FCC's PRB-1 was an at- tempt"to strike a balance between the federal interest in promoting am- ateur operations and the legitimate interests of local governments in regulating local zoning matters,"found the court. ©2016 Thomson Reuters 7