This case is before the court on remand from the
United States Court of Appeals for the Sixth Circuit (Thernes v. City
of Lakeside Park, et al., 779 F.2d 1187, decided January 6, 1986) for
consideration of a Federal Communications Commission ("FCC") Order issued
during the pendency of the appeal and relating to the preemption of state
and local land use regulations of amateur radio antennas, and the application
of the FCC order to the ordinances of the defendant City of Lakeside Park,
This matter was before this court on cross-motions for summary judgement which had been set for hearing on February 13, 1987. Following a preliminary decision of this court entered on January 15, 1987, and a settlement conference of the parties with the court on February 12, 1987, the parties hereto have agreed to final disposition of the merits of this action and the adoption of a consent decree in accordance with the provisions set forth below.
Accordingly, it is hereby AGREED by the parties and ORDERED, ADJUDGED and DECREED by the court as follows:
1. The facts of this case are set forth in the Statement of the Facts portion of the decision of this court entered October 10, 1984, the stipulations of the parties entered prior thereto, and the opinion of the Court of Appeals of January 6, 1986.
2. Essentially, the plaintiff, John Thernes, is an amateur radio operator licensed by the FCC who is seeking a permit for the construction at his home in the defendant City of Lakeside Park, Kentucky, an antenna for use in amateur radio communications.
3. In his application for permit, plaintiff sought to erect an amateur radio support tower having two rotatable horizontal antennas of Yagi design mounted thereon, one at the top of the tower specifically designed for use in the 10, 15 and 20 meter amateur radio bands, and a second one above the first at the top of an eight foot mast and specifically designed for use in the 40 meter amateur radio band, the turning radius of the antenna system being approximately 24 feet.
4. The application of plaintiff for a building permit for his antenna system was denied by the defendant zoning administrator for the reason that radio antennas were not permitted in any zone of the City. Plaintiff appealed the denial to the defendant Lakeside Park Board of Adjustments which upheld the denial.
5. Plaintiff brought this suit under 42 U.S.C. Section 1983, on September 29, 1983, against the City, the Board of Adjustments and its members, the zoning administrator, and the Northern Kentucky Area Planning Commission ("NKAPC"). Plaintiff challenged the actions of the defendants on the bases that, as the laws of the City were written and applied, their action was inconsistent with the federal congressional and FCC policy and preempted by federal statute and regulation; that it violated plaintiff's First Amendment rights; that it denied plaintiff equal protection and was arbitrary in that television antennas were permitted in every zone of the City; that it denied plaintiff substantive due process through the exercise of the City's zoning power; that the ordinance unduly burdened interstate commerce; and therefore plaintiff should be entitled to an order permitting the construction of an effective amateur radio antenna system, which the defendants denied.
6. This court granted summary judgement to the defendants by Judgement, Opinion and Order filed October 10, 1984, and plaintiff appealed to the United States Court of Appeals for the Sixth Circuit. On the date of the oral argument on the appeal, the FCC issued an Order declaring a limited preemption over local regulation of amateur radio antenna facilities. (Amateur Radio Preemption, 101 FCC 2d 952 (1985), ("PRB-1").) The order, PRB-1, enunciated a federal regulatory policy in support of effective amateur radio communications, and preempted state and local land use regulations which unduly restrict amateur communications in communities. PRB-1 further declared that local regulations which involve placement, screening or height of antennas based on health, safety or aesthetic considerations must be crafted to accomodate reasonably amateur communications and to represent the minimum practical regulation to accomplish the local authority's legitimate purpose.
7. The Court of Appeals vacated this court's judgement, and remanded the case for further proceedings in light of PRB-1 and its application to the Lakeside Park zoning ordinance. In doing so the Court of Appeals stated that the exercise by the FCC of its preemptive justification strongly suggests that the Lakeside Park ban on amateur radio antennas may violate federal law, but that an accommodation of both amateur radio operation and the legitimate planning needs of communities was possible.
8. Following oral argument in the Court of Appeals, but prior to the decision on appeal, Lakeside Park adopted a new ordinance No. 9-85 regulating radio antennas, which permitted radio antennas limited to a single vertical rod not to exceed 50 feet in height, with horizontal elements not to exceed eight feet in length, and with other restrictions.
9. The antenna proposed by plaintiff would have exceeded the dimensions set forth in the new ordinance 9-85.
10. As set forth by the evidence in the record, which was submitted in part by plaintiff in part by the Amicus Curiae, the American Radio Relay League, plaintiff's interests in engaging in effective national and worldwide amateur radio communications requires antennas supported at a height of sixty-five (65) feet. No ordinance of the defendants would literally accommodate such requirements.
11. On the motions for summary judgement, this court issued a preliminary order on January 15, 1987, the tentative conclusions of which are incorporated herein.
12. As agreed by the parties and the court in conference on February 12, 1987, the plaintiff shall be permitted to erect a sixty-five (65) foot tower, and to support an antenna for use on the 10, 15 and 20 meter amateur radio bands on the top thereof; and, theincremental aesthetic difference between sixty-five (65) and seventy-three (73) feet being insubstantial, plaintiff shall be permitted to support an antenna for use on the 40 meter amateur radio band on a mast eight feet above the top of the tower at a height of seventy-three (73) feet.
13. Further, the parties agree (1) that the tower supporting the antennas may be erected by the plaintiff in the rear yard of his residence in Lakeside Park; (2) that the tower and the anchors for the guy wires supporting the tower shall be placed (unless the plaintiff and the City zoning administrator otherwise agree) at a distance of at least 15 feet from the side yard lines of the plaintiff and at least 10 feet from the rear yard line on the plaintiff; (3) that no portion of the antennas or supporting structure shall extend beyond the boundaries of plaintiff's property; and (4) that the antennas, tower, and other supporting elements shall conform to or exceed all engineering standards for safety and structural integrity as set forth in plaintiff's original applications for zoning permits which are in the record and incorporated into the stipulations of facts.
14. Accordingly, the defendants shall allow plaintiff to erect, maintain and use an amateur radio antenna system as set forth in the provisions above unaffected by any present or future ordinances of the City to the contrary, and shall issue to plaintiff all permits necessary therefor.
15. Judgement shall be awarded for the plaintiff and against the defendants in the amount of $13,800.00, and all further claims for compensation as damages, costs or attorneys' fees shall be dismissed.
Wherefore, final judgement is hereby entered
in accordance with the terms of this consent decree as set forth above.