Agenda - Planning Commission - 01/05/2017

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October 25, 2016 1 Volume 10 1 Issue 20 Zoning Bulletin The court noted that the FCC did not specify a minimum height below which local governments must allow for radio towers. Rather,the court found that, "as the FCC has explained, PRB-1 provides 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 court explained that: "Notwithstanding PRB- 1's somewhat vague language, several principles emerge. First, local municipalities must reasonably accommodate amateur communications. Second, zoning ordinances should be the minimum practicable restric- tions which accomplish the local municipalities' legitimate purposes. Third, local municipalities may not ban all amateur communications towers. Finally, the FCC has explicitly declined to regulate the specific permissible heights for antenna towers." Despite its analysis of the applicable law, the court, nonetheless E determined that it did not,in this case,have jurisdiction to hear DePolo's E PRB-1 preemption claim and decide the matter on the merits.The court noted that while DePolo was aggrieved by the ZHBA's decision, Pennsylvania law required that "[a]ll appeals from all land use deci- sions . . . shall be taken to the court of common pleas of the judicial district wherein the land is located."The court found that DePolo had "adequate opportunity to litigate the matter beyond the ZHBA by ap- pealing to the appropriate [state] Court of Common Pleas within 30 days of the ZHBA's decision. However, rather than do that, DePolo filed his federal lawsuit and allowed the 30-day appeal period under state law to expire.That,said the court,was"fatal to his ability to obtain federal review of his claim." DePolo, concluded the court, was "now bound by the final judgment of the ZHBA," as its ruling was a "final r judgment on the merits that is entitled to preclusive effect in federal court." See also: Evans a Board of County Com'rs of County of Boulder, Colo., 994 F.2d 755 (10th Cir. 1993) (interpreting PRB-I and uphold- ing its preemptive effect). See also: Thernes a City of Lakeside Park, Ky., 779 E2d 1187 (6th Cir: 1986) (per curiam) (interpreting PRB-1 and upholding its preemp- tive effect). See also: Williams a City of Columbia, 906 F.2d 994 (4th Cir. 1990) (interpreting PRB-1 and upholding its preemptive effect). See also: Howard v. City of Burlingame, 937 F2d 1376, 1380 (9th Cir. 1991) (interpreting PRB-1 and upholding its preemptive effect). See also: Izzo v Borough of River Edge, 843 F.2d 765(3d Cir: 1988). Case Note: i' 8 ©2016 Thomson Reuters I'