Maybe in PA, but in these parts you first have to exhaust your administrative remedies. 73, Jay, K0QB Sent from my iPad
On Aug 31, 2016, at 4:47 PM, Bob Famiglio, K3RF <RBFamiglio@Verizon.net> wrote:
Yes, but this decision is new law Mike. In thirty years, hams always had access to federal courts first from an unreasonable, negative decision after a formal, local town zoning appeal hearing. There was no requirement to go up through the state system first. We appealed from the first zoning appeal we first took from the zoning officer decision within the 30 days but to federal court, not a Pennsylvania trial court. The new decision says we must go to the state court to test compliance with PRB-1. Once we do that, there is little opportunity to then go to a federal court unless the state court says there is no preemption. We never had to before and neither did hams in other circuits until now.
This decision is a change as suggested by the header “precedential” Yes, they now say a ham MUST go to the state court first to deal with a zoning board which did not reasonably accommodate a ham. The federal court will not then be able to overturn unreasonable fact findings of accommodation made by the State. When I have filed dual cases in State and Federal courts simultaneously, BOTH courts want to stay the case for the other. In the first circuit case of Chedister, (130 foot tower in residential area) the federal district court abstained because the ham had appealed the zoning board decision to the state court first. Yet now we are told we must do that. Also, the first case to render a decision precludes the second court from revisiting the same fact issue. We argued that point in a pocket brief requested by the court here. Chris Imlay was involved in that procedural question and opined that was a new requirement or issue in emails to me at the time, but Chris clearly is not familiar with the 1000 pages of details of the original zoning appeals. This new rule is a major change. Knowledgeable PRB-1 lawyers agree – it’s not just my thinking on this. PRB-1 lawyers I counsel with also agree it is a problem hams did not have until this precedential opinion. This new burden is a serious impediment not existing until now. I have been involved in dozens of ham PRB-1 cases, actually trying them in the trenches, since the PRB-1 ruling in 1985.
You are not familiar with the proceedings and as you say you are not a lawyer, but I understand that you played a lawyer on TV. If you have a genuine desire to learn about the case, please call me at your convenience. You can have my time.
Bob Famiglio, K3RF Vice Director, ARRL Atlantic Division 610-359-7300
www.QRZ.com/db/K3RF
From: Mike Lisenco N2YBB [mailto:n2ybb@arrl.org] Sent: Wednesday, August 31, 2016 4:25 PM To: Bob Famiglio, K3RF; 'arrl-odv' Subject: Re: [arrl-odv:25620] PRB-1 gets another black eye - from the US 3rdCircuit this time.
Bob,
I just read through the decision (thanks for sending it).
It seems to me that you brought the case to the wrong court and that by doing so you tied their hands up and they were forced to kill your case. Obviously I’m not an attorney, and I’m sure you’ll point that out in your reply, but it seems to me that the decision has nothing to do with PRB-1 per se and instead points out your procedural error. Apparently the federal court’s hands were bound into upholding the state court’s decision because of that.
The court writes “Although DePolo suggests that we should decide this case on the merits and hold that a 12(b)(6) dismissal is simply not appropriate here, the procedural posture of this case precludes our review of the merits of his claims.”
You say a lot in your email that puts the court at blame but I’m sorry, I wonder where the fault lies.
Mike N2YBB _______________________________________________ arrl-odv mailing list arrl-odv@reflector.arrl.org https://reflector.arrl.org/mailman/listinfo/arrl-odv