Good question Doug but there is a ton of case law (not all of it favorable to us of course) applying the codification of PRB-1 and the declaratory ruling itself. There is no real fear that H.R. 4969 will undo any of that as it applies to municipal ordinances. It is quite clear from the case law that reasonable accommodation, no prohibition and least practicable restriction is a flexible test of both ordinances and in special use permit situations to individual applications. An HOA would have to apply the test in each case to individual parcels of land. That said, there are a lot of potential problem areas in how the Bill could shake out if we are fortunate enough for our strategy to work: FCC could make findings that could use those examples and limit the effectiveness of the application of the three-part test to CC&Rs. But at this point, anything is better than where we are now and there is no danger to the zoning application of this, the way the Bill reads, unless FCC goes completely rogue, which we hope to prevent in our dialog with Walden and his darn sharp committee staff guys. 73, Chris W3KD Sent from my iPhone
On Jul 5, 2014, at 9:41 PM, Doug Rehman <doug@k4ac.com> wrote:
Chris:
Is there a danger in “reasonable accommodation” as it has been interpreted/defined by the courts in PRB-1 cases being affected by amateurs now saying that verticals and wire antennas are “reasonable accommodation” in CC&R cases? Could opponents of towers take the CC&R “acceptable antennas” and make a strong argument that those same antennas would be reasonable accommodation in PRB-1 situations?
My concern is that we win the battle for antennas in CC&R restricted areas, but lose the war by having courts now say towers are unnecessary in PRB-1 cases. It would seem that trying to proffer two different definitions for “reasonable accommodation” is a potentially dangerous game.
Doug K4AC
From: arrl-odv [mailto:arrl-odv-bounces@reflector.arrl.org] On Behalf Of Chris Imlay Sent: Saturday, July 5, 2014 4:31 PM To: James F. Boehner MD Cc: Marty Woll; arrl-odv Subject: [arrl-odv:22956] Re: Co-sponsor HR.4969, the “Amateur Radio Parity Act of 2014”
Jim, glad you raised this. Yes, the strategy is still the same. The strategy is that of Greg Walden and we want to do this according to his plan. This is seriously confidential and under no circumstances is it to be mentioned outside the Board family but when we reach critical mass on cosponsors, Walden plans to call his former staffer at WTB, FCC and tell them to do this on their own and not make Congress pass this Bill. Critical mass at this juncture is about 30 cosponsors. We can do this. As to the arguments to be made, Mike and I have a talking points paper that I thought had been circulated to the Board. It deals appropriately with what reasonable accommodation in the CC&R context means. I have a few edits for Mike's "how to sell this Bill" piece that I will get to the Board ASAP. We want to be ahead of the petition guys here who may be well-intentioned but on the wrong track. Also, the Keelen Group is working with us very closely on getting cosponsors on a surgical basis rather than on a shotgun basis so it is best not to get too far ahead of them on rounding up cosponsors. We are paying them a lot of money to strategize this and believe me, they know what they are doing. 73, Chris W3KD
Sent from my iPhone