Thernes v. City of Lakeside Park , 779 F.2d 1187 ( 1986 )

PER CURIAM.

On April 8,1983, appellant John Themes, a federally licensed amateur radio operator, submitted two alternative applications for a zoning permit to the City of Lakeside Park, Kentucky, for the construction of an amateur radio antenna system.¹ In a letter dated April 29, 1983, the Zoning Administrator of the City of Lakeside Park denied Thernes’s applications. The letter stated in part:

a permit for construction of a radio tower cannot be issued within the City of Lakeside Park because they are not listed as a permitted accessory use in any zone in the city as required by section 9.8(C) of the Lakeside Park Zoning ordinance.²

The parties have stipulated that the Official Zoning Ordinance, as applied, prohibits the construction of radio towers in any and all zones in the City of Lakeside Park. They have also stipulated that the ordinance, as applied, permits erection of television antennas in every zone of the City.

Themes appealed the decision of the Zoning Administrator to the Board of Adjustments of the City of Lakeside Park. After a hearing, the Board of Adjustments issued a letter denying Thernes’s applications for a zoning permit. Themes then filed this suit in the United States District Court for the Eastern District of Kentucky under 42 U.S.C. § 1983, alleging that the Official Zoning Ordinance is unconstitutional on its face and as applied. Themes asserted that the ordinance violated his First Amendment right to free speech in that it deprived him of the right to maintain his amateur radio tower and antenna, which he contended were necessary to his ability to communicate throughout the United States and worldwide through the use of his amateur radio station. He further alleged that the ordinance was vague, overbroad, and gave unlimited discretion to administrative officials in issuing permits. Themes also alleged that the subject matter and regulation of federally licensed amateur radio stations and operators is preempted by the Federal Communications Act of 1934, 47 U.S.C. § 151 et seq., and the rules and regulations of the Federal Communications Commission (“FCC”) promulgated pursuant thereto. Further, Themes asserted that application of the ordinance constituted an invalid exercise of the police power of the City of Lakeside Park, and that the ordinance constituted an undue burden on interstate commerce. Finally, he alleged an equal protection violation under the ordinance in that television, but not radio, antennas are exempt from all height limitations.

With regard to the preemption claim, the district court noted that the Federal Communications Act does not specifically address amateur radio station antenna height. After examining the regulations promulgated by the FCC under the Act,³ the court concluded that the FCC was concerned with antenna height only to the extent the height affects national aviation navigation and airport safety, and that the FCC evinced no intent to “supplant the fundamentally local concerns expressed in land use control ordinances.” As to Themes’s other claims, the district court found no violation of constitutional rights. Accordingly, the district court granted the City’s motion for summary judgment. This appeal followed.

On the date of oral argument in this case, September 19, 1985, the FCC released a declaratory ruling entitled “Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities.”⁴ In its memorandum opinion and order, the FCC stated that the issue before it was “the extent to which state and local zoning regulations may conflict with federal policies concerning amateur radio operations.” After weighing the interests involved, the FCC concluded that “a limited preemption policy is warranted. State and local regulations that operate to preclude amateur communications in their communities are in direct conflict with federal objectives and must be preempted.” The FCC continued:

We will not, however, specify any particular height limitation below which a local government may not regulate, nor will we suggest the precise language that must be contained in local ordinances, such as mechanisms for special exceptions, variances or conditional use permits. Nevertheless, local regulations which involve placement, screening, or height of antenna 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.

This recent exercise of its latent preemptive statutory outright powers by the FCC strongly suggests that the ban upon the erection of amateur radio station antennas in the Village of Lakeside may now contravene federal law. At the same time, the memorandum opinion and the order clearly indicate a willingness on the part of the FCC to accommodate the legitimate needs of amateur radio station operations and the planning needs of communities. Plainly, the FCC now intends to involve itself in the matter of antenna height beyond that merely necessary to assure national aviation navigation and airport safety, but is willing to work with local communities with respect to particulars. We find no indication in the position of either party before us hostile to such a possible solution of their difficulties and accordingly VACATE the judgment of the district court and REMAND for reconsideration and for further proceedings in light of the FCC declaratory ruling.

1 . One application exhibited the tower attached to Thernes’s house, and the second application exhibited the tower detached from the house. Thernes’s proposed radio transmitting and reception tower was comprised of a seventy foot tower with motorized rotating horizontal antennas.

2 . Section 9.8(C) of the Lakeside Park Zoning Ordinance provides: "Only those accessory structures and uses specifically identified in this ordinance shall be permitted." Section 9.11(A)(1) provides: "The height limitations of this ordinance shall not apply to such things as: church spires, various types of towers, smoke stacks, other related structures and necessary mechanical appurtenances, etc., provided their construction is in accordance with existing or hereafter adopted ordinances of the city, and is acceptable to the Federal Aviation Agency and the Federal Communication Commission."

3 . See 47 C.F.R. Part 97 (1983). Height restrictions are specifically addressed at 47 C.F.R. § 97.45.

4 . 50 Fed.Reg. 38,813 (1985).