Antenna Zoning
There is a tower across town, or on the next block, or down the street. Perhaps it went up many years ago.
It may not even have needed a permit. There are several facts you may not have considered — perhaps legal
facts, perhaps physical facts and demographic facts, perhaps ugly, but nonetheless real, facts.
Legal Facts
Since that antenna system was erected, the town bylaws or ordinances may have changed. Since the
passage of the Communications Act of 1996, towns all over the United States have aggressively been
changing their bylaws or ordinances.
Don’t think they’ve changed the bylaws or ordinances? Check out Kleinhaus et al. v. Cortlandt , S.Ct.
N.Y., County of Westchester, Index No. 19396/95 (Lefkowitz, J.), March 18, 1996. Kleinhaus, an
amateur radio operator,
1
contracted to purchase a residence in the Town of Cortlandt in 1993 at a time
when the town’s Zoning Code had no height restriction applicable to freestanding antennas. After the
Purchase and Sale Agreement was signed, but prior to completion of the purchase, the town amended
its zoning laws to provide that in an R-40 (residential-40,000 square feet minimum) zone the maximum
height allowed for structures is 35 feet.
Kleinhaus was eventually successful when the Court found “ that some of the ZBA’s [Zoning Board of
Appeals] fi ndings are not supported by the evidence. ” The ZBA’s determination to decline a variance
was “ annulled as irrational, arbitrary and capricious. ” The court remanded the matter to the ZBA for
further proceedings, and the parties were able to work out a compromise. Kleinhaus got permission to
erect a 100-foot tower. However, this whole process cost the town and the applicant a lot of money — a
lot of money. The taxpayers of Cortlandt were not well served by the inability of their representatives
to compromise earlier.
The purpose of mentioning this specifi c case is to show that even smart applicants with small projects
can get caught up in undesirable situations when a town changes the bylaws before they move in. It
could also happen to you after you’ve completed the purchase or rental of a parcel and before you get
around to applying for a permit. The details of the process are covered in this book.
After I wrote Antenna Zoning for the Radio Amateur , the wise and encouraging general counsel of the
Society of Broadcast Engineers, Chris Imlay, Esq., told me that the professionals could use some tips
too. He too had noticed that the Communications Act of 1996 had resulted in huge changes in local
zoning for commercial antenna systems, with ever-increasing challenges.
It may not even have needed a permit. There are several facts you may not have considered — perhaps legal
facts, perhaps physical facts and demographic facts, perhaps ugly, but nonetheless real, facts.
Legal Facts
Since that antenna system was erected, the town bylaws or ordinances may have changed. Since the
passage of the Communications Act of 1996, towns all over the United States have aggressively been
changing their bylaws or ordinances.
Don’t think they’ve changed the bylaws or ordinances? Check out Kleinhaus et al. v. Cortlandt , S.Ct.
N.Y., County of Westchester, Index No. 19396/95 (Lefkowitz, J.), March 18, 1996. Kleinhaus, an
amateur radio operator,
1
contracted to purchase a residence in the Town of Cortlandt in 1993 at a time
when the town’s Zoning Code had no height restriction applicable to freestanding antennas. After the
Purchase and Sale Agreement was signed, but prior to completion of the purchase, the town amended
its zoning laws to provide that in an R-40 (residential-40,000 square feet minimum) zone the maximum
height allowed for structures is 35 feet.
Kleinhaus was eventually successful when the Court found “ that some of the ZBA’s [Zoning Board of
Appeals] fi ndings are not supported by the evidence. ” The ZBA’s determination to decline a variance
was “ annulled as irrational, arbitrary and capricious. ” The court remanded the matter to the ZBA for
further proceedings, and the parties were able to work out a compromise. Kleinhaus got permission to
erect a 100-foot tower. However, this whole process cost the town and the applicant a lot of money — a
lot of money. The taxpayers of Cortlandt were not well served by the inability of their representatives
to compromise earlier.
The purpose of mentioning this specifi c case is to show that even smart applicants with small projects
can get caught up in undesirable situations when a town changes the bylaws before they move in. It
could also happen to you after you’ve completed the purchase or rental of a parcel and before you get
around to applying for a permit. The details of the process are covered in this book.
After I wrote Antenna Zoning for the Radio Amateur , the wise and encouraging general counsel of the
Society of Broadcast Engineers, Chris Imlay, Esq., told me that the professionals could use some tips
too. He too had noticed that the Communications Act of 1996 had resulted in huge changes in local
zoning for commercial antenna systems, with ever-increasing challenges.
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