[arrl-odv:25620] PRB-1 gets another black eye - from the US 3rd Circuit this time.
Dear Colleagues: The major PRB-1 case pending in the U.S. Third Circuit Court of Appeals for WN3A, Jeffrey DePolo has been decided - unfortunately it deals a body blow to the effectiveness of PRB-1. For background, the Amateur Radio Operator seeking relief from the Pennsylvania township's denial of his application for tower, is Jeff DePolo, WN3A - the widely known, published and heralded VHF, UHF and microwave experimenter (not a contester, as has been alleged by some here) - who was the trustee of N3KZ of the University of Pennsylvania for many years. He is now the sole benefactor of the massive University of Pennsylvania repeater system, N3KZ, which covers five states, linked by RF only (103 receivers and 64 transmitters, all on emergency power at hardened mountaintop sites). Jeff's tower at his home was also to be the location of the repeater-switching center as well as the hub of the Chester County ARES 5 GHz multimedia, wideband emergency system. The county emergency services guy testified that this specific ham tower was mission critical. Jeff purchased the property on which the tower was to be located specifically for ham use and had just finished building a new home on the most rural, tower-suitable property that was available in the township. It was across the street from a former Nike radar base with many platforms and towers that had been dismantled in 2000, after long use by the University of Pennsylvania Ionosphere Research Center. Jeff spent much time there as a student, and thereafter. A University of Pennsylvania radio club station was located there. The old Nike and UPenn research site is just a few hundred feet from his property line. To strip the 3rd Circuit's opinion to its basics, it effectively holds that whatever a local town zoning board decides is a reasonable accommodation is just that - no matter what evidence was presented or not presented. It means that a local zoning board can assert their opinion as fact and that will stand. A federal court will not review the "reasonable accommodation" decision; it may review only the narrow preemption issue. You should read the opinion, even if you are not a lawyer. The decision is precedential -a declaration that appears as the first line at the top of its first page. This is a significant setback for Amateur Radio, as admitted by the Third Circuit itself. Legally, the Opinion is applicable only to States in the US Third Circuit, but in my view, and the view of other knowledgeable lawyers who have reviewed the Opinion, it is reasonable to expect this Opinion will be used by other municipalities to dial back PRB-1 and expand their denial of Amateur Radio tower and antenna applications. Some cities and towns will hope the Opinion is adopted by those Federal Circuits inclined to roll back the rights of radio amateurs - as we have seen in recent years. For Jeff DePolo, the good news is that we have a plan to proceed in state court with a path that we have spent time in the last 24 hours defining. Under a particular Pennsylvania statute, we believe the case can be transferred to state court. However, we don't believe that a state court is going to more sympathetic than we thought a federal court would be in interpreting what is largely federal law. This decision is consistent with several other local, un-appealed cases I have had in the last several years where municipalities have no desire to allow Amateurs to have any antennas over 35 feet in the Eastern Pennsylvania region. As the US District Court judge wrote, their argument is that Hams can use the internet or satellites to communicate. Their opinion is that a 16 foot high antenna works perfectly well for microwave. This a large disappointment for hundreds if not thousands of our Members who are planning towers, or are users of the University of Pennsylvania linked-repeater system throughout New York, New Jersey, Delaware and Maryland. Though there is a difficult road ahead, this particular case will eventually get to another trial though in state court, not federal court. Worse for Jeff DePolo is that the township has suggested that the original 65 foot variance (wholly unusable) expired after a year. Opponents now will fight anything over 35 feet, despite Pennsylvania's minimum of 65' statute, claiming the language of the state statue is ambiguous as to the definitions of "by right" exceptions. By the way, 35 feet is Jeff's roof line. In my view, the PA state statute is an example of what happens when we permit a statute to be drafted without any input from lawyers with Amateur Radio experience. This is a hard lesson to be learned about supporting local groups lobbying for state statutes in the blind. Amateur Radio needs a federal statute similar to the considerations of the Telecom Act of 1996. I raised this in early 2015 as the writing was well on the wall by then. PRB-1 does not and never did guarantee usable antennas, only reasonable accommodation, which is now just what the any town tells you it is. If you have any questions, it would be better to call me. It is a complicated matter on which I have spent hundreds of hours over the last several years. It is easier and faster to explain in a live conversation. If you need another copy of our 3rd circuit legal briefs which explain the case in detail, let me know. Keep the faith. Bob Famiglio, K3RF Vice Director, ARRL Atlantic Division 610-359-7300 www.QRZ.com/db/K3RF
Thanks for the view from the trenches Bob. Doug K4AC From: arrl-odv [mailto:arrl-odv-bounces@reflector.arrl.org] On Behalf Of Bob Famiglio, K3RF Sent: Wednesday, August 31, 2016 3:23 PM To: 'arrl-odv' <arrl-odv@arrl.org> Subject: [arrl-odv:25620] PRB-1 gets another black eye - from the US 3rd Circuit this time. Dear Colleagues: The major PRB-1 case pending in the U.S. Third Circuit Court of Appeals for WN3A, Jeffrey DePolo has been decided - unfortunately it deals a body blow to the effectiveness of PRB-1. For background, the Amateur Radio Operator seeking relief from the Pennsylvania township's denial of his application for tower, is Jeff DePolo, WN3A - the widely known, published and heralded VHF, UHF and microwave experimenter (not a contester, as has been alleged by some here) - who was the trustee of N3KZ of the University of Pennsylvania for many years. He is now the sole benefactor of the massive University of Pennsylvania repeater system, N3KZ, which covers five states, linked by RF only (103 receivers and 64 transmitters, all on emergency power at hardened mountaintop sites). Jeff's tower at his home was also to be the location of the repeater-switching center as well as the hub of the Chester County ARES 5 GHz multimedia, wideband emergency system. The county emergency services guy testified that this specific ham tower was mission critical. Jeff purchased the property on which the tower was to be located specifically for ham use and had just finished building a new home on the most rural, tower-suitable property that was available in the township. It was across the street from a former Nike radar base with many platforms and towers that had been dismantled in 2000, after long use by the University of Pennsylvania Ionosphere Research Center. Jeff spent much time there as a student, and thereafter. A University of Pennsylvania radio club station was located there. The old Nike and UPenn research site is just a few hundred feet from his property line. To strip the 3rd Circuit's opinion to its basics, it effectively holds that whatever a local town zoning board decides is a reasonable accommodation is just that - no matter what evidence was presented or not presented. It means that a local zoning board can assert their opinion as fact and that will stand. A federal court will not review the "reasonable accommodation" decision; it may review only the narrow preemption issue. You should read the opinion, even if you are not a lawyer. The decision is precedential -a declaration that appears as the first line at the top of its first page. This is a significant setback for Amateur Radio, as admitted by the Third Circuit itself. Legally, the Opinion is applicable only to States in the US Third Circuit, but in my view, and the view of other knowledgeable lawyers who have reviewed the Opinion, it is reasonable to expect this Opinion will be used by other municipalities to dial back PRB-1 and expand their denial of Amateur Radio tower and antenna applications. Some cities and towns will hope the Opinion is adopted by those Federal Circuits inclined to roll back the rights of radio amateurs - as we have seen in recent years. For Jeff DePolo, the good news is that we have a plan to proceed in state court with a path that we have spent time in the last 24 hours defining. Under a particular Pennsylvania statute, we believe the case can be transferred to state court. However, we don't believe that a state court is going to more sympathetic than we thought a federal court would be in interpreting what is largely federal law. This decision is consistent with several other local, un-appealed cases I have had in the last several years where municipalities have no desire to allow Amateurs to have any antennas over 35 feet in the Eastern Pennsylvania region. As the US District Court judge wrote, their argument is that Hams can use the internet or satellites to communicate. Their opinion is that a 16 foot high antenna works perfectly well for microwave. This a large disappointment for hundreds if not thousands of our Members who are planning towers, or are users of the University of Pennsylvania linked-repeater system throughout New York, New Jersey, Delaware and Maryland. Though there is a difficult road ahead, this particular case will eventually get to another trial though in state court, not federal court. Worse for Jeff DePolo is that the township has suggested that the original 65 foot variance (wholly unusable) expired after a year. Opponents now will fight anything over 35 feet, despite Pennsylvania's minimum of 65' statute, claiming the language of the state statue is ambiguous as to the definitions of "by right" exceptions. By the way, 35 feet is Jeff's roof line. In my view, the PA state statute is an example of what happens when we permit a statute to be drafted without any input from lawyers with Amateur Radio experience. This is a hard lesson to be learned about supporting local groups lobbying for state statutes in the blind. Amateur Radio needs a federal statute similar to the considerations of the Telecom Act of 1996. I raised this in early 2015 as the writing was well on the wall by then. PRB-1 does not and never did guarantee usable antennas, only reasonable accommodation, which is now just what the any town tells you it is. If you have any questions, it would be better to call me. It is a complicated matter on which I have spent hundreds of hours over the last several years. It is easier and faster to explain in a live conversation. If you need another copy of our 3rd circuit legal briefs which explain the case in detail, let me know. Keep the faith. Bob Famiglio, K3RF Vice Director, ARRL Atlantic Division 610-359-7300 www.QRZ.com/db/K3RF <http://www.QRZ.com/db/K3RF>
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
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
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
Which was my point. The administrative remedies took a year and were completed. 1000 pages of fact record and 5 nights of trial time with witnesses over five months. From: John Bellows [mailto:jbellows@skypoint.com] Sent: Wednesday, August 31, 2016 6:06 PM To: Bob Famiglio, K3RF Cc: Mike Lisenco N2YBB; arrl-odv Subject: Re: [arrl-odv:25627] Re: PRB-1 gets another black eye - from the US 3rdCircuit this time. 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
participants (4)
-
Bob Famiglio, K3RF -
Doug Rehman -
John Bellows -
Mike Lisenco N2YBB