Pentel v. City of Mendota Heights

• Decision Date: 18 January 1994
• Docket Number: No. 93-1026,93-1026
• Citation: 13 F.3d 1261
• Parties: Sylvia PENTEL, Appellant, v. CITY OF MENDOTA HEIGHTS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1261

13 F.3d 1261

Sylvia PENTEL, Appellant, v. CITY OF MENDOTA HEIGHTS, Appellee.

No. 93-1026.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 13, 1993.

Decided Jan. 18, 1994.

John Bellows, St. Paul, MN, argued (Christopher D. Inlay, Washington, DC, on brief), for amicus curiae.

Eric J. Nystrom, St. Paul, MN, argued, for appellee.

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.

I.

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 Heights, Minn., Zoning Ordinance Sec. 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. Sec. 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.

II.

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, 106 S.Ct. 2548, 2552-53, 2554, 91 L.Ed.2d 265 (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 p 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 p 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.1987). ⁴

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 p 25.

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, ma[k]e 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 p 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 (...