A Federal judge has relied on PRB-1 to void a local height limitation as applied to an Amateur Radio antenna.  Andrew B. Bodony, K2LE, had brought suit in U. S. District Court for the Eastern District of New York to overturn denial by the Village of Sands Point of his application for a building permit for an 86-foot tower, retractable to 23 feet in height.  In granting partial summary judgement in Bodony's favor, District Judge Jacob Mishler found PRB-1 to be a proper exercise of FCC authority and found that the Village was precluded from applying its 25 foot height limitation on accessory  buildings to Bodony's proposed antenna.  This court test of PRB-1 represents the first time a local zoning ordinance as applied to an Amateur Radio antenna has been declared invalid on the basis of PRB-1. 
United States District Court
Eastern District of New York
Andrew. B. Bodony,                                                               CV-3967


Incorporated Village of Sands Point,                                       Memorandum
Marjorie Weinstein, Bruce Shroyer,                                               of
Mario Tribuno, Harry B. Anderson                                    Decision and Order
and Albert Shapiro, individually
and in their capacities as members
of Board of Zoning and Appeals
of the Incorporated Village of
Sands Point, and Leonard Wurzel,
Building Inspector,
                     Defendants                                                    September 21, 1987

Seyfarth, Shaw, Fairweather & Geraldson, Esqs.
    Attorneys for Plaintiff
    757 Third Ave.
    New York, NY  10017
    Timothy J. McInnis, Esq., Of Counsel
    Michael L. Hirschfeld, Esq., Of Counsel

Sheft, Wright & Sweeney, Esqs.
    Attorneys for Defendants
    11 Broadway
    New York, NY  10004
    Robert P. Siegel, Esq., Of Counsel

Christopher D. Imlay, Esq.

Mishler, District Judge

    Andrew B. Bodony is an amateur radio operator, licensed by the F.C.C. as an Amateur Extra Class licensee.  On October 5, 1984, the F.C.C. granted Bodony an amateur radio station license for Bodony's residence at Cornwells Beach Road, Sands Point, Nassau County, New York.  Soon thereafter Bodony began preparation for the erection of a free standing structure for an antenna system, 23 feet in height in its retracted position and 86 feet in height in its extended position.  Bodony excavated an area of about 4 1/2 feet square to a depth of about 12 feet and poured concrete into the excavation to serve as an anchor for the antenna.  The site of the antenna is a wooded area and it is expected that trees will shield the antenna from public view when it is extended to its maximum height.
    The Incorporated Village of Sands Point ("Village") issued a summons charging Bodony with a violation of a village ordinance requiring a building permit for the structure.  Bodony applied for a building permit.  The Village denied the permit.  Leonard Wurzel, building inspector of the Village, is joined as a party defendant.
    On January 23, 1986, Bodony appealed to the Zoning Board seeking a variance of section 352.2 of the Building Ordinance of the Village which limits the height of accessory buildings to 25 feet.  After conducting a public hearing, the Zoning Board, in a formal decision dated October 27, 1986, denied the application and found:
                    Within the Village of Sands Point
                there are several residents who
                operate amateur radio stations with
                towers and antennas which conform to
                the height restrictions of the
                Building Zone Ordinance of the
                Village and communicate at frequent
                    The applicant has failed to
                demonstrate that he cannot operate an
                amateur radio station with an antenna
                which conforms to the height
                restriction in the Building Zone
                Ordinance and that he has suffered
                any hardship.
                    The applicant has failed to prove
                that the tower and the antenna
                thereon is (sic) safe.
                    The proposed construction of the
                tower and antenna would (a)
                depreciate the value of the property
                of the Village; (b) create a hazard
                to health, safety and general
                welfare; (c) be detrimental to the
                character of the neighborhood or to
                the residents thereof; (d) alter the
                essential character of the
                neighborhood, or (e) otherwise be
                detrimental to the public convenience
                and welfare.

The Complaint

    The complaint alleges eight claims against the Village, members of the Zoning Board and Wurzel as follows:

    Count 1-Section 352 para. 2 of the Village Building Ordinance is preempted by the Declaratory Ruling of the F.C.C. published September 25, 1985 in the Federal Register, 101 F.C.C. 2d 952, Fed. Reg. 38, 813 (PRB-1), which in pertinent part declared:
                    Local regulations which involve
                    placement, screening, or height of
                    antennas based on health, safety or
                    aesthetic considerations must be
                    crafted to accommodate reasonably
                    amateur communications, and to
                    represent the minimum practicable
                    regulation to accomplish the local
                    authority's legitimate purpose.

    Count II-The height restriction is unconstitutional in that it constitutes a burden on radio communication and interstate commerce in violation of Article I, Section 8, Clause 3 of the Constitution (power to regulate interstate commerce).

    Count III-A violation of First Amendment rights of free speech, assembly, and association.

    Count IV-A violation of the Fourteenth Amendment right of equal protection of law in that Section 352, para. 3 provides:  "No other buildings shall exceed forty (40) feet in height or three (3) stories and attic.  Church spires, belfries, flagstaffs, chimneys, flues and television antennas may extend above said height limitations."  ("Other buildings" as used in paragraph 3 are buildings other than principal dwellings and accessory buildings.)

    Count V-A violation of the First and Fourteenth Amendments in that it subjects the plaintiff to possible criminal liability and the ordinance is vague and overbroad and fails to inform, guide, instruct or direct the Zoning Board in consideration of plaintiff's application.  As applied, the ordinance has a chilling effect on plaintiff's constitutional rights.

    Count VI-The height restriction does not bear a reasonable relationship to the state's police power and therefore is unreasonable, arbitrary, discriminatory, oppressive and confiscatory and constitutes an unwarranted interference with substantial property rights.

    Count VII-The hearing conducted by the members of the Zoning Board was unfair in that (1) they had arrived at a determination to deny the application prior to the hearing; (2) evidence was introduced of a difficult technical nature without notice or an opportunity to meet it; and (3) they sought advice and counsel from third parties to support their predetermined denial of the application.1/


    Bodony moves pursuant to Fed. R. Civ. P. 56 for partial summary judgement on Counts I, IV and VI seeking a declaratory judgement declaring that the height limitation as applied to him for the purpose of erecting an amateur radio antenna system to a height in excess of 25 feet is invalid.  Defendants cross move for summary judgement to dismiss the complaint on the ground that the Zoning Board did not act arbitrarily or unreasonably in denying Bodony's application for a variance.


    PRB-1 states under the caption "Summary"

    This document declares a limited preemption of state and local regulations which preclude
    amateur communications.  The ruling is necessary so that amateurs and local governing
    bodies alike will be aware of the strong federal interest in promoting amateur

    Further, under the caption "Local Ordinances", PRB-1 states:

    3.  Conflicts between amateur operators regarding radio antennas and local authorities
    are common....These limiting regulations (on height) can result in conflict because the
    effectiveness of the communications that emanate from an amateur radio station are
    directly dependent upon the location and the height of the antenna.  Amateur operators
    maintain that they are precluded from operating on certain bands allocated for their use
    if the height of their antennas is limited by a local ordinance.

    Further, under the caption, "Discussion"

    22.  Few matters coming before us present such a clear dichotomy of viewpoint as does the
    instant issue.  The cities, counties, local communities and housing associations see an
    obligation to all of their citizens and try to address their concerns....  At the opposite pole
    are the individual amateur operators and their support groups who are troubled by local
    regulations which may inhibit the use of amateur stations, or, in some instances, totally
    preclude amateur communications....  In this situation, we believe it is appropriate to
    strike a balance between the federal interest in promoting amateur operations and the
    legitimate interest of local governments in regulating local zoning matters.  The
    cornerstone on which we will predicate our decision is that a reasonable accommodation
    may be made between the two sides.

    24.  (W)e recognize here that there are certain general state and local interests which may,
    in their even-handed application, legitimately affect amateur radio facilities.  Nonetheless,
    there is also a strong federal interest in promoting amateur communications....  We recognize
    the amateur radio service as a voluntary, noncommercial communication service, particularly
    with respect to providing emergency communications....  Upon weighing these interests, we
    believe a limited preemption policy is warranted....

    25.  Because amateur station communications are only as effective as the antennas employed,
    antenna height restrictions directly affect the effectiveness of amateur communications.  Some
    amateur antenna configurations require more substantial installations than others if they are
    to provide the amateur operator with the communications that he/she desires to engage in.
    For example, an antenna array for international amateur communications will differ from an
    antenna used to contact other amateur operators at shorter distances.  We will not, however,
    specify any particular height limitation below which a local government may not regulate....
    Nevertheless, local regulations which involve placement, screening or height of antennas
    based on health, safety or aesthetic considerations must be crafted to accommodate
    reasonably amateur communications, and to represent the minimum practicable regulation
    to accomplish the local authority's legitimate purpose.

    Congress created the F.C.C. in the Communications Act of 1934, 47 U.S.C. & 151 et seq.
and granted the F.C.C. the power to promulgate regulations "as may be necessary in the execution of its functions...."  47 U.S.C. & 154(c).  The F.C.C. was given "broad responsibilities" to regulate all aspects of interstate and foreign radio under &2(a) of the Communications Act of 1934, 47 U.S.C. & 152(a).  Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 700, 104 S. Ct. 2694, 2700-01 (1984); see also United States v. Southwestern Cable Co., 392 U.S. 157, 177-78, 88 S. Ct. 1994, 2005 (1968).  The regulations have the same preemptive effect as federal statutes.  United States v. Shimer, 367 U.S. 374, 383, 81 S. Ct. 1554, 1560 (1961).  The F.C.C. decided on a "limited preemption" which requires the Village to vary the ordinance limiting the height of Bodony's antenna so that he may use the license granted him by the F.C.C. for international communications, and exercise its right to protect the health, safety and general welfare and preserve property values and the general character of the neighborhood by using the least restrictive height to accomplish its "legitimate purpose."

Defendants' Position

    Defendants resist Bodony's motion for partial summary judgement and support their own motion by arguing that:

    (1)  Section 352.2 does not preclude amateur communications but only limits the height of
    the antenna to 25 feet, thus falling outside the area preempted by PRB-1.  (Defendants' memo
    p. 9).

    (2)  Bodony failed to demonstrate that he could not operate an amateur radio station within
    the height restriction of Section 352.2.  (3(g) Statement).

    (3)  The Zoning Board decided that construction of the tower would (a) depreciate the
    value of the property, (b) endanger the health, safety and welfare of the residents, and (c)
    be detrimental to the character of the neighborhood or the residents and change the
    essential character of the neighborhood.

The Height Limitation as Affecting Bodony's Rights as a Licensee

    One factor in determining the range and effectiveness of radio communication is the height of the antenna.  Measurement from the ground tells us little.  A 25 foot antenna in a valley surrounded by hills might be useless, while that equipment on a mountain top might give optimum results.  An antenna rising above the obstacles that interfere with radio signals obviously gives a greater range and better reception than an antenna of a lesser height.
    The fact that Section 352.2 does not prohibit amateur communications is not the answer to a claim of preemption.  An absolute limitation of height affects Bodony's right to the full use of his amateur extra class license and the license to use his property as an amateur radio station issued by the F.C.C..  The Zoning Board did not consider a height above 25 feet that would at the same time "accomplish the local authority's legitimate purpose".  The F.C.C., in asserting a limited preemption, placed upon the Zoning Board the duty of striking "a balance between the federal interest in promoting amateur operations and the legitimate interests of local governments in regulating local zoning matters."  The recital by the defendants of the findings of the Zoning Board in arguing its opposition to Bodony's motion does not preclude litigation of the validity of Section 352.2 as it affects Bodony.  See University of Tennessee v. Elliot, 478 U.S.___, 106 S. Ct. 3220, 3225 (1986).
    It is clear from the record of the hearing before the Zoning Board that a limit of 25 feet of antenna height seriously interferes with the full enjoyment by Bodony of his license to operate an amateur radio station.2/
    The record fails to show that the erection of the proposed antenna will endanger the health, safety and general welfare of the residents or be detrimental to the character of the neighborhood or to the residents.  The Zoning Board did not determine the height above which the antenna would endanger the health, safety and general welfare of the residents.  It is uncertain how the erection of the proposed antenna system will affect the outward appearance or aesthetic harmony of the neighborhood, given the proposed shielding of the system by trees.  The action of the Zoning Board is devoid of any effort to make "a reasonable accommodation...between the two sides."
    We find that Section 352.2 of the Building Ordinance is invalid as it applies to the plaintiff Andrew B. Bodony as an amateur extra class operator at the site licensed by the F.C.C. as an amateur radio station.  Our discussion on the height of amateur radio station antennas is not intended to suggest an appropriate height.  We base our ruling on PRB-1, in preempting the right of the Zoning Board to arbitrarily fix a limitation on the height of an antenna to 25 feet.3/

Defendants' Motion for Summary Judgement

    Bodony opposes defendants' motion for summary judgement on the ground that he has not had the opportunity to discover materials in the exclusive possession of the defendants that would probably result in evidence showing the existence of material issues of fact.  Schering v. Home Ins. Co., 712 F. 2d 4, 10 (2d Cir. 1983), Fed. R. Civ. Pg. 56 (f).  We believe that Bodony has offered evidence that presents material issues of fact, and there is no reason to delay decision on the motion.
    We turn to defendants' argument that the Zoning Board's decision may not be overturned unless the action is arbitrary and capricious.  (Point IV, Defendants' memo).
    Count VII alleges a civil rights claim in charging the Zoning Board with (1) having denied Bodony's application before the hearing commenced, and (2) seeking advice and counsel from third to the best manner in which to deny plaintiff's application..." in violation of his right to due process.  The court having directed production of document No. 7 in a memorandum of decision dated this day, and defendants having consented to the production of documents numbered 5 and 8, finds fact issues presented on this claim.  The court of course does not find that the claim is established.
    If Bodony succeeds on this claim, the decision of the Zoning Board must be vacated.  We are not bound by the findings of the Zoning Board in such event.  See Acorn Ponds v. Incorporated Village of North Hills, 623 F. Supp. 688, 693 (E.D.N.Y. 1985).  (The & 1983 claim goes beyond a claim of error in the application of the zoning laws and charges members of the Zoning Board with an abuse of power that violated plaintiff's right to due process).  The issues presented in the claim were not before the Zoning Board.
    Enough has been offered in the record of the hearings to establish material fact issues for trial.  Summary judgement is denied.
    We note in passing that abstention in a case involving claims of violation of constitutional rights is inappropriate.


    The motion of plaintiff Andrew B. Bodony for partial summary judgement is granted to the extent of declaring the 25 foot height limitation contained in section 352, para. 1 on the antenna system (an "accessory building") proposed by Bodony as void as it affects Bodony as an amateur extra class licensee for the licensed premises.  Summary judgement on the issue of liability on Count I of the complaint is granted.  See Lytle v. Freedom International Carriers, 519 F. 2d 129, 133 (6th Cir. 1975); Leasing Service Corp. v. Graham, 646 F. Supp. 1410, 1414 (S.D.N.Y. 1986); Fed. R. Civ. P. 56 (a); Wright, Miller & Kane, Federal Practice and Procedure 2s section 2737 at 446-53.
    Defendants' motion for summary judgement is in all respects denied, and it is

                  SO ORDERED.

signed, Mishler..........U.S.D.J.

1/  Plaintiff seeks to impose liability upon the members of the Zoning Board individually and as members of the Zoning Board.

2/  Testimony of experts indicates that a height of 60 to 70 feet is necessary for good reception under ideal atmospheric conditions.  One Carl Silar, an amateur radio operator, stated that he received communications worldwide using an antenna which was less than 25 feet.  He conceded 50 feet, 60 feet or 70 feet would achieve a better result.  The F.C.C. permits operators of Citizen Band (CB) radio transmitters to use an antenna 60 feet in height holding "the primary purpose of permitting such an increase in height is to enable licensees to erect antennas above nearby obstacles which may absorb radiated energy and thus decrease ability to communicate."  42 F.C.C. 2d 511, 513 (1973).  In Oelkers v. City of Placentia, No. CV 78-1301-RMT (C.D. Cal. 1979) (unreported decision) holding a 15 foot limitation on the height of an antenna unconstitutional as it affected the plaintiff amateur radio operator and found that the plaintiff was deprived "of some radio frequencies" at an increased height of 50 feet (as ordered by the court).

3/  We find it unnecessary to discuss the other grounds for the relief requested, i.e., Count IV (equal protection of law), and Count VI (section 353.2 unconstitutionally vague).

    Plaintiff Andrew B. Bodony object to the Order of Magistrate David F. Jordan dated July 6, 1987 to the extent that it denies discovery of documents 1, 2, 3, 4, 6, 7, 14, 15, 16, 17 and 23 on a list described as "Privilege List" pursuant to Fed. R. Civ. P. 72 (a).
    Defendants claim error in the finding of waiver based on their failure to respond to plaintiff's request for production of documents under Rule 34 and further object to the production of numbers 10 and 11 on the ground of privilege.
    We have examined the Privilege List in camera.
    We find that document No. 7 is not a request for legal advice but rather one for the recommendation of an expert.  A request to name a witness who will supply technical advice to the Zoning Board is the type of request that is generally made of non-lawyers, and is not privileged.  First Wisconsin Mortgage Trust v. First Wisconsin Corp., 86 F.R.D. 160, 174 (E.D. Wis. 1980), 8 Wigmore, Evidence, & 2296.  The document also contains a statement of information received by Ms. Weinstein that is not part of the record, which she indicates will be considered in arriving at a decision.  Though ex parte communications do not void an agency's decision, Southwest Sunsites, Inc. V. F.T.C., 785 F. 2d 1431, 1436 (9th Cir.), cert. denied, 107 S. Ct. 109 (1986), the consideration of evidence outside the record will invite an attack of such decision on due process grounds.  Simpson v. Wolansky, 38 N.Y. 2d, 391, 396, 380 N.Y.S. 2d 630, 634 (1975).  The plaintiff makes the argument in this case.  Document No. 7 is producable.1/
    We agree with defendants that the Magistrate was in error in directing production of documents numbered 10 and 11.  Document 10 seeks legal advice of counsel and document 11 gives legal advice.
    We have reviewed the circumstances under which the defendants failed to comply with Standing Discovery Order No. 21 of this court (requiring assertion of privilege) and failing to move timely under Fed. R. Civ. P. 26 (c).  The defendants' attorney's conduct was not in bad faith or for the purpose of delay.  We find that the magistrate's finding of waiver based on the violations of the rule and order to be error.  The expense of the motion to compel production may nevertheless be recovered.
    Defendants are directed to produce documents No. 5 and No. 8 (by consent of defendants) and document No. 7.  Documents numbered 10 and 11 are privileged and need not be produced.
    The motions by plaintiff and defendants are granted to the extent indicated and are in all other respects denied, and it is

signed.......Judge Mishler, U.S.D.J.

1/  Defendants consented to the production of document No. 8.  Document No. 8 is a response to the request by Ms. Weinstein in document No. 7.
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