Court Rules Excessive Antenna Application Fees Violated Reasonable Accommodation

Long-pending Amateur Radio antenna litigation that ARRL helped to fund has finally borne fruit. The Supreme Court of the State of New York, Appellate Division: Second Judicial Department has ruled in the case of Myles Landstein, N2EHG, that the Town of LaGrange, New York, not only overstepped its state-granted authority by assessing excessive fees, but violated the limited federal preemption PRB-1 in the process. PRB-1 requires municipalities and states to “reasonably” accommodate Amateur Radio antennas and to apply the “minimum practicable regulation” in handling Amateur Radio antenna applications. The ruling is slated to be published as a case decision. Landstein had wanted to erect a 70-foot antenna support structure; the Town of LaGrange has a 35-foot height limit.

“This case, which goes back to 2013, was about applying PRB-1 to a situation in which a municipality attempted to thwart the installation and maintenance of ham radio antennas by imposing excessive permit application costs on the ham applicant,” said communications attorney Chris Imlay, W3KD, who is familar with the case. Imlay said the FCC has refused to clarify the cost-prohibition issue as it relates to PRB-1’s “minimum practicable regulation” and reasonable accommodation provisions of PRB-1.

“The Town incurred more than $17,000 in legal consulting fees in connection with [Landstein’s] applications, and informed the petitioner that he was required to reimburse the Town for these fees before any determination would be made with respect to the applications,” the court decision recounted. “The Town subsequently, as ‘an accommodation to the petitioner,’ reduced the amount…to…$5,874, but also required the petitioner to maintain a minimum advance continuing escrow balance of at least $1,000 to cover the Town’s future consulting costs…”

“We hold that, because the Town did not limit the consulting fees charged to the petitioner to those necessary to the decision-making function of the town’s Planning Board and Zoning Board of Appeals, the town exceeded its state-granted authority by requiring payment of the consulting fees and, moreover, violated a rule promulgated by the [FCC],” the court concluded.

Given the significant delay, Imlay said both he and Landstein had lost hope that the case would ever be resolved in Landstein’s favor — and in the favor of radio amateurs in New York, generally — much less be a case that would “create favorable precedent for Amateur Radio.”

“ARRL originally was drawn to this case, because New York is the only state that, due to a very old case decision, has held that Amateur Radio antennas are not necessarily a “normal accessory use” to residential real property,” Imlay explained. “Because the issue in the case dealt with both that issue and the issue of cost prohibitions in the permitting process relative to the cost of the antenna installation, we decided to fund the case.” Landstein lost at trial, and an appeal was filed in about 2015, for which ARRL provided memoranda of law about the cost-prohibition issue. “The antenna at issue and the support structure was to cost no more than $1,000,” Imlay said.

The court concluded that the town “may not use its land-use regulatory authority to construct ‘hoop after hoop’ for the petitioner to jump through in order to erect his radio antenna tower [and] cannot impose unreasonable expenses so as to create an insurmountable financial barrier to the pursuit of the project. In this context, not only must the consultant fees be reasonable…, but the underlying services must be necessarily related to those municipal regulatory functions which are not preempted by federal law.”

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