United States Court of Appeals
FOR THE EIGHTH CIRCUIT
Appeal from the United
States District Court
for the District of
City of Mendota Heights,
Submitted: October 13, 1993
Filed: January 18, 1994
Before McMillian, Bowman, and Magill, Circuit Judges.
Bowman, Circuit Judge.
Pursuant to its zoning ordinance, the City of Mendota
Heights, Minnesota, denied Sylvia Pentel, an amateur radio operator, permission
to erect a 68-foot radio antenna tower in her yard. Pentel then sued
the city, claiming that the zoning ordinance was preempted by a Federal
Communications Commission ruling known as PRB-1, which requires the city
reasonably to accommodate her amateur communications. The District
Court granted summary judgment to the city, and Pentel appeals. Because
we conclude that the city did not reasonably accommodate Pentel when it
limited her to the continuing use of her ineffective 56.5-foot antenna,
we reverse and grant summary judgment to Pentel.
Pentel is an amateur radio operator who uses radio communications
to serve the public interest. After she was licensed by the FCC in
December 1988 to operate an amateur radio and a station from her home,
she installed on her roof a vertical radio antenna that reaches a height
from the ground of 56.5 feet. Over the next two years, Pentel was
unable to establish reliable radio communications with other amateurs across
the United States, and she was able to establish only one international
contact. Pentel concluded that her existing antenna thus was not
adequate for domestic, much less international, communications.
Accordingly, Pentel began preparing to install a
more sophisticated antenna. The replacement was to be a retractable
steel tower that measured 30 feet when lowered and 68 feet when fully extended.
This tower, which Pentel planned to have installed professionally in accordance
with its manufacturer's specifications, was to have mounted on its top
two directional aluminum antennas.1/
Pentel was unaware when she installed her original
antenna that she was violating the city's zoning ordinance, which limits
all structures, including radio antennas, to a height of twenty-five feet.2/
While preparing to install her new antenna, Pentel became aware of the
city's restrictions, and in January 1991 she filed for a variance pursuant
to Mendota Height, Minn., Zoning Ordinance & 5.5 (1981).
The city evaluated Pentel's application through
a planning report prepared by a city staff member, and at a planning commission
meeting and two city council meetings. The city then sent Pentel
a letter in February 1991 telling her that her application had been denied.
The letter did not state any factual findings, reasons for the denial,
or what Pentel could do to gain the city's approval. In an attempt
to offer Pentel a reasonable accommodation, as required by In re Federal
Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities,
101 F.C.C. 2d 952, 50 Fed. Reg. 38, 813 (1985) (codified at 47 C.F.R. &
97.15 (e) (1992)) [hereinafter PRB-1], the city council granted Pentel
a special-use permit that allowed her to continue using her existing antenna,
which she had erected in contravention of the city's zoning ordinance.
Pentel then filed suit against the city in the District
Court, claiming that the city's ordinance was preempted by PRB-1 in that
the city had not reasonably accommodated her. Agreeing that there
were no disputed issues of material fact, Pentel and the city both moved
for summary judgment. The District Court granted summary judgment
in favor of the city on all claims.3/ Pentel appeals.
We review de novo the district court's grant of summary
judgment. United States ex rel. Glass v. Medtronic, Inc.,
957 F. 2d 605, 607 (8th Cir. 1992). Because the parties agree that
no material facts are in dispute, summary judgment is appropriate in favor
of the party that is entitled as a matter of law to a judgment in its favor.
See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 322-23, 326 (1986).
Cases centering on zoning regulations governing
amateur radio antenna towers present a unique tension among the various
parties' interests. On the one hand, a local municipality, through
the exercise of its traditional police powers, may regulate the height
and placement of radio antenna towers erected in residential districts.
A municipality's motivations for such regulation include the possibilities
that an antenna may block the line of sight of pedestrians or drivers;
constitute a prominent eyesore that also may interfere with a scenic view;
fall on nearby residences; or decrease property values.
Amateur radio operators, on the other hand, plainly
have an interest in maintaining successful amateur communications and in
sustaining a strong network of radio amateurs. The federal government's
interests are aligned with those of the amateurs, for amateur radio volunteers
afford reliable emergency preparedness, national security, and disaster
relief communications. Because there is a direct correlation between
an amateur's antenna height and her ability successfully to transmit and
receive radio signals, federal interests are furthered when local regulations
do not unduly restrict the erection of amateur radio antennas.
The FCC was attempting to referee the tension between
these interests when it issued PRB-1, in which it attempted "to strike
a balance between the federal interest in promoting amateur operations
and the legitimate interests of local governments in regulating local zoning
matters." PRB-1 para. 22. After weighing local, federal, and
amateur interests, the FCC issued a ruling that has a limited preemptive
effect on local regulations. See PRB-1 para. 24. The
federal courts that have addressed this ruling have upheld its preemptive
effect. See, e.g., Evans v. Board of County Comm'rs,
994 F. 2d 755, 760-61 (10th Cir. 1993); Thernes v. City of Lakeside
Park, Ky., 779 F. 2d 1187, 1188-89 (6th Cir. 1986) (per curiam).
Courts applying PRB-1 have discerned two means by
which PRB-1 may preempt a local ordinance. First, the local regulation
may be preempted on its face. The city's zoning ordinance does not
conflict on its face with PRB-1 because it neither bans nor imposes an
unvarying height restriction on amateur radio antennas. See Evans
v. Board of County Comm'rs, 752 F. Supp. 973, 976-77 (D. Colo. 1990);
Bulchis v. City of Edmonds, 671 F. Supp. 1270, 1274 (W.D. Wash.
Second, PRB-1 also preempts a zoning ordinance that
a city has not applied in a manner that reasonably accommodates amateur
communications. See Evans, 994 F. 2d at 761; MacMillan
v. City of Rocky River, 748 F. Supp. 1241, 1248 (N.D. Ohio 1990).
The FCC refused to specify a height below which local governments could
not regulate, and instead declared that "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." (PRB-1 para.
Initially, we must discuss the extent to which this
language requires municipalities to yield to amateur interests. Although
some courts have evaluated whether the municipality properly balanced its
interests against the federal government's interests in promoting amateur
communications, see Williams v. City of Columbia, 906 F. 2d 994,
998 (4th Cir. 1990); MacMillan, 748 F. Supp. at 1248, we read
PRB-1 as requiring municipalities to do more--PRB-1 specifically requires
the city to accommodate reasonably amateur communications.5/
See Evans, 994 F. 2d at 762-63. This distinction is important,
because a standard that requires a city to accommodate amateur communications
in a reasonable fashion is certainly more rigorous than one that simply
requires a city to balance local and federal interests when deciding whether
to permit a radio antenna.
Application of this reasonable accommodation standard,
however, does not require the city to allow the amateur to erect any antenna
she desires. Instead, it requires only that the city "consider the
application, make factual findings, and attempt to negotiate a satisfactory
compromise with the applicant." Howard v. City of Burlingame,
937 F. 2d 1376, 1380 (9th Cir. 1991); see, e.g., Evans, 994 F. 2d
at 762 (stating that the county was willing to permit a crank-up tower,
a shorter tower, or a tower located elsewhere); Williams, 906 F.
2d at 997 (stating that the city suggested a limitation on the hours the
antenna could be extended, and noting that the amateur could apply for
a shorter antenna). Under this approach, a local regulation that
impairs amateur radio communications is preempted as applied if the city
has not crafted it "to accommodate reasonably amateur communications" while
using "the minimum practicable regulation (necessary) to accomplish the
local authority's legitimate purpose." (PRB-1 para.25).
The city informed Pentel that her application had
been denied via a bare-bones letter that did not list any bases for the
denial. Because the city council failed to make any factual findings,6/
see White Bear Rod & Gun Club v. City of Hugo, 388 N.W.
2d 739, 742 (Minn. 1986) (holding in a case reviewing a city council's
denial of a special-use permit that a cryptic listing of reasons for the
denial did not constitute factual findings); VanLandschoot v. City of
Mendota Heights, 336 N.W. 2s 503, 509 n. 7 (Minn. 1983) (stating that
variances and special-use permits are treated identically on judicial review),
we need not consider whether, if it had, such findings would be afforded
preclusive effect here, see University of Tenn. v. Elliott, 478
U.S. 788, 797-99 (1986).
Although the city failed to make any factual findings,
the planning report and hearings suggest four potential justifications
for the city's denial of Pentel's variance application. We now turn
to those justifications. First, the city had no reason to fear that
the antenna would interfere with other residents' television and radio
reception; the city's planning report states that Pentel was prohibited
by the FCC from causing, and that she could lose her license if she failed
to correct, such a problem.
Second, the city expressed concerns about the tower's
safety in light of the strong winds that frequent the Mississippi River
valley. Pentel presented to the city the manufacturer's specifications,
which rate the tower secure in eighty-mile-per-hour winds. Although
the city generally relies on such specifications produced by manufacturers,
it declined to do so in this case. In addition, the tower was retractable,
and the city could require Pentel to retract it whenever bad weather threatened.
Moreover, the city in 1987 allowed a nearby amateur radio operator to erect
a similar tower, and that one was closer to the operator's property line
than Pentel's was to be. The record before us thus does not establish
a factual basis for the city's safety concerns.
Third, the city claims that it believed it reasonably
accommodated Pentel because she already successfully engages in amateur
communications. Pentel submitted with her application a letter of
commendation for her public services. The city's planning report
concluded that this letter demonstrated the adequacy of Pentel's current
antenna. Pentel has pointed out, however, that the public services
cited in the letter were not related to the amateur communications in which
she engaged from her home. In fact, the letter makes it clear that
the amateur communications for which Pentel was to be commended were conducted
at the Air National Guard base in Minneapolis.
In addition, the mayor and some members of the city
council indicated in their depositions that they concluded from Pentel's
statements at the hearings that she already was communicating effectively,
albeit not to the extent she desired. The hearings' minutes indicate
that Pentel stated that she was able to reach only sporadically various
places in the United States, and that her current antenna did not allow
reliable long-range transmissions. When prompted, her attorney reluctantly
attempted to quantify the communications: he characterized Pentel's
current chances for making contact at 40 percent, and estimated those chances
at 80 to 90 percent with the improved tower. The context of these
remarks and Pentel's other statements incicate that these chances of success
referred to domestic communications only.
This quantification of Pentel's ability to communicate
was thoroughly mischaracterized by the mayor at his deposition, where he
stated that Pentel was able to communicate worldwide 60 to 70 percent of
the time, but that she wanted to have reliable worldwide communications
100 percent of the time. One city council member understood Pentel's
statements regarding her transmission success, but others demonstrated
a fuzzy understanding, at best, of Pentel's situation. Although what
constitutes "successful" amateur communications is difficult to quantify,
the evidence in the record does not justify a finding by the city that
Pentel's old antenna enabled her "successfully" to engage in amateur communications,
and the city was unreasonable if it so found. On the record before
us, the city's first three concerns lack factual support.
The city's last reason for denying Pentel's application,
that the antenna tower would be unsightly, rests on subjective considerations
and is difficult for a reviewing court to evaluate. This reason is
undercut, however, by the city's willingness to allow Pentel to keep her
present roof-mounted antenna, which reaches a height only slightly below
that of her proposed antenna tower, and by the city's allowance of a similar
antenna tower nearby. We acknowledge the possible aesthetic difference
between an antenna tower and a roof-mounted antenna, but there is no indication
in the record that the city attempted to find any compromise that would
have accommodated Pentel's amateur communications.
The city's decision to grant a variance that allows
Pentel to continue using a wholly inadequate antenna does not constitute
an accommodation in any practical sense. In addition, because the
city did not reasonably accommodate Pentel, it obviously did not use the
least restrictive means available to meet its legitimate zoning purposes.
We therefore hold that the city's zoning ordinance as applied in this case
is preempted by PRB-1.
We exhort the parties to work together to arrive at
a satisfactory solution to this controversy. PRB-1 requires the city
reasonably to accommodate Pentel's needs as an amateur radio operator;
what is allowed is the "minimum practicable regulation (necessary) to accomplish
the local authority's legitimate purpose." (PRB-1 para. 25). The
District Court's grant of summary judgment to the city is reversed, and
the case is remanded to the District Court for the entry of summary judgment
in favor of Pentel. Our decision does not mean that the city necessarily
must grant Pentel's application as it now stands, but it does mean that
the city must make a reasonable accommodation for her interests.
A true copy.
U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
1. Pentel's proposed antenna would be more effective than her existing
set-up for two reasons. First, Pentel's current vertical antenna
dissipates signals in all directions, while her proposed directional antenna
would concentrate and collect signals, thus increasing her ability to transmit
and receive in a specific direction. Second, an antenna's effectiveness
increases with its height. Pentel's existing antenna is blocked by
trees. Her taller replacement antenna, when extended, would be at
or near the tops of nearby trees, thus improving her signal transmission
2. The parties failed to furnish this Court a copy of Section
8B.4 (1) of the Mendota Heights zoning ordinance, and the city was unable
to furnish a copy when contacted by this Court. We do not pursue
the issue, however, because the parties agree, and the District Court found,
that this section limits Pentel's radio antenna tower to a maximum height
of 25 feet.
3. In addition to her preemption challenge, Pentel raised various
other constitutional challenges that are not renewed here.
4. Pentel's argument that the city's ordinance is void for vagueness
is without merit. See Kolender v. Lawson, 461 U.S. 352, 357-58
(1983); Williams v. City of Columbia, 906 F. 2d 994, 998 (4th Cir.
5. At various places in PRB-1, the FCC states that, in considering
the issue before it, it weighed federal and amateur operator interests
against those of local governments. After balancing these interests,
the standard that the FCC concluded was appropriate was that a local government
must reasonably accommodate amateur radio communications. See
PRB-1 paragraph 22, 24.
6. Mendota Heights, Minnesota, Zoning Ordinance Sec. 5.5 (5) (1981)
states that the city council's action in denying a variance application
"shall constitute a finding and determination by the City Council that
the conditions required for approval do not exist." This conclusory
language does not provide a court with any documented, enumerated factual
findings to review. The city may have made factual findings for its
purposes, but it has not for ours.
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