Legal Battle

Before I moved to Hudson I called to inquire about the tower restrictions. I was told that there had been mistakenly an ordinance enacted with a 70 foot restriction on Amateur towers. Further I was told that this was going to be corrected in the next year by the Planning Board. I decided in the mean time to apply for a variance to allow me to build three 100 foot towers with 20 feet of antennas. I sought assistance from the ARRL. The League sent me a packet of information containing studies showing that property values would not be affected. The ARRL also sent good information on addressing the PRB-1 issue. The variance was applied for by the previous owners of the property and a variance hearing took place before I purchased the house and land. At this variance hearing, a number of my soon to be neighbors showed up to protest. The reasons included everything from red lights flashing at night, breast cancer, brain tumors, making all the men sterile, attracting plane crashes, attracting lightning and noise from all the air conditioning equipment. Despite my assurances that these fears were unfounded, the ZBA denied the variance because "I could live without antennas".

Since we were told that the town intended to restore the 100 foot limit in the near future, I decided that I could wait for the ordinance to change back and settle for the towers and antennas not to exceed 100 feet. I applied for a permit to erect the towers at 70 feet anyway. The permit was approved, but I did not take it out.

After moving into our new house about a month later, I was informed by one of the members of the ZBA that the 70 foot ordinance had been struck down in court and that I could now apply for a permit for three 87 foot towers. I applied for the permit from the town and the permit was granted.

On New Year's Eve 1998, I received notification from the town that the issuance of my permit had been appealed by Suzanne Marchand, Joanne Radziewicz, and Peter Radziewicz. With this came a stop work order leaving my holes dug and no concrete in them.

A hearing was held by the Hudson ZBA in March 1999. The ZBA upheld the issuance of the permit unanimously. My neighbors then applied for a rehearing and were again unanimously denied. They then took the case to Superior Court and applied for an emergency restraining order to stop construction. The restraining order was denied.

In a surprising decision on January 5, 2000 the Superior Court ordered all my antennas removed. The court came to this conclusion as there were no other 3 tower installations in the neighborhood. The court rejected the PRB-1 argument because the size and height of the towers "would upset the balance between the federal interest in promoting amateur operations and the legitimate interest of local governments in regulating local zoning matters." This decision left me with "nothing" on my six plus acre lot.

The case was appealed by the town to the Supreme Court. I joined the case at this time. The New Hampshire Supreme Court heard the case in October 2001 and released the decision on December 31, 2001.

The New Hampshire Supreme Court ruled that while the three 87 foot towers that I wished to erect are not customary, they ruled based on State and federal law, does not permit a total denial of the permit. The New Hampshire Supreme Court made a strong ruling in support of PRB-1 and now requires that the particular needs of an amateur operator in question must be accommodated. What this means is that in New Hampshire regardless of the ordinances, towns cannot regulate someone off the air. The New Hampshire Supreme Court by this judicial ruling re-affirms PRB-1 legislative law (RSA 674.:16 and 674:17 ) already on the books is the law in New Hampshire. Included in the decision is a rejection of the balancing approach adopted in some jurisdictions. This means that the balancing was done previously by the FCC and local authorities cannot re-balance a ham off the air.

The text of this decision is available at

http://www.courts.state.nh.us/supreme/opinions/2001/march221.htm

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