An elevated guy anchor with W6TER's two 130-foot Rohn 45 towers.
An elevated guy anchor with W6TER's two 130-foot Rohn 45 towers. |
NEWINGTON, CT, Apr 21, 2005--Two 130-foot antenna support structures on the property of New Mexico radio amateur Gerry Smith, W6TER, will remain, now that the case to permit them has prevailed in the state Supreme Court. An opinion earlier this month reversed New Mexico Court of Appeals and District Court decisions that ruled against allowing Smith to continue constructing the towers on his rural Bernalillo County property. In July 1999, the county issued Smith a building permit but in December of that year ordered him to halt the project claiming it had erred in issuing the permit. New Mexico Supreme Court Chief Justice Richard C. Bosson recounted events a bit differently in the unanimous opinion.
"After neighbors complained, the county changed its mind, tried unsuccessfully to stop the construction and devised new reasons why Plaintiff's [Smith's] radio towers should not be allowed," Bosson wrote.
Smith bought his property in July 1999 after extensively researching deed covenants, conditions and restrictions, receiving assurances from county officials and submitting a detailed, professionally prepared site plan. After Smith got his building permit and began work on the tower project, Bernalillo County attempted to shut it down, citing June 1999 amendments to its zoning ordinance that, the county asserted, had removed Amateur Radio antennas as an "incidental use" in the A-2 (rural agricultural) zone.
Smith took his case to District Court, which agreed with the county's rationale and added another reason of its own to prohibit the structures. The case then went to the Appeals Court. In 2002, New Mexico became the 14th state to adopt an Amateur Radio antenna bill, based on the limited federal preemption known as PRB-1, which requires municipalities to "reasonably accommodate" Amateur Radio communication. Paraphrasing the language of PRB-1, the Appeals Court agreed that the District Court had acted properly in denying Smith's petition because the two 130-foot towers were "unreasonable" as a customarily incidental use.
Taking the case on certiorari, the New Mexico Supreme Court applied three standards of review and agreed with Smith on all counts. The high court said that the plain terms of the county ordinance indicate that Amateur Radio towers are exempt from height restrictions, that the county had previously interpreted ham radio antennas as customarily incidental, and that the county had failed to adopt a specific standard to preserve scenicW6TER-AntAppeal-2 value.
"The results of this case
may be unfortunate for the neighbors who understandably regard
Plaintiff's radio towers as an eyesore," Bosson wrote for
the court. "But Plaintiff fairly relied on the express language
of the ordinance and the assurances of the county zoning officials in
buying his property." The Supreme Court said that if the county
had wanted to prevent towers like Smith's, it could have
expressly amended its zoning ordinance to include specific height
limitations.
 W6TER works a rare one from his station. [Gerry Smith, W6TER, Photos] |
"The County cannot after the fact come up with a new legal rationale to block an unpopular activity, which was previously permitted, to the detriment of a property owner who did everything in his power to follow the rules," Bosson concluded in reversing the Court of Appeals affirmation of the District Court decision.
Regarding his neighbors--the nearest of which is some 1500 feet away--Smith said their main concern was not that the towers were an eyesore. "It is depreciation of property value," he told ARRL. "In fact, over the course of this litigation, their property values have substantially escalated, in tune with other areas around where I live."
The League actively participated in Smith's case from the start, and ARRL General Counsel Chris Imlay, W3KD, filed a friend-of-the-court (amicus curiae) brief with the Court of Appeals in support of Smith's appeal. The League also filed three extensive briefs in the case, most recently with the New Mexico Supreme Court, said Imlay, who called the decision "a great precedent" for similar cases and a "shot in the arm for tower planning."
"Most importantly, the case holds that Amateur Radio antennas--even large ones not specifically regulated by ordinance--can be constructed without an unlegislated ‘reasonableness' factor," Imlay commented.
Smith credited his attorney Ed
Ricco, N5LI, an ARRL Volunteer Counsel, of Albuquerque, for the
successful outcome. "It was Ed's masterful briefs and
oral argument that won this case," he said.
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