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Nesbitt's Unfavorable Federal PRB-1 Decision.

Discussion in 'Amateur Radio News' started by N2WKL, Oct 25, 2014.

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  1. N2WKL

    N2WKL Ham Member QRZ Page

    View attachment Case 1-13-cv-00881-ODE.pdf
    For those of you who were following this case:

    Attached is the US District Court filings regarding the unfavorable Federal PRB-1 decision on Ritner Nesbitt, N4BNM tower fight.

    This decision advances a lesson not to be ignored by Ham operators.

    Finally, as some of you may already know, Ritner Nesbitt, N4BNM is no longer with us. His demise occurred on January 31st 2014 while at home. His wife Patricia Nesbitt had continued his antenna fight. It is unknown, at this time, whether or not an Appeal will be taken on the most recent Court decision.

    73,

    Trent, N2WKL
     
  2. K4RT

    K4RT Ham Member QRZ Page

    The lesson is to not skirt the local code if you expect to rely on PRB-1: "Because Plaintiffs ignored the County ordinance and constructed the tower without applying for a permit thereby foreclosing many potential areas of compromise, the Court finds that the County met its burden to seek a reasonable accommodation by suggesting some landscaping and/or antenna stacking."

    Take a look at the Cobb County code section that the court included in footnote #2 (pp. 2-3 of decision). It's extremely burdensome. Fortunately, there is an exception for licensed amateur radio operators.
     
  3. W1YW

    W1YW Ham Member QRZ Page

    I was not aware he was SK. What a tragic set of outcomes:-(

    Chip W1YW
     
  4. AD0FJ

    AD0FJ Ham Member QRZ Page

    The decision filing is very interesting reading, I read all 17 pages.

    Cobb County's regulations are burdensome, esp. when you exceed 35' and exceptionally restrictive above 70', to become an almost unclearable hurdle. This would probably have been enough to mount a successful PRB-1 challenge, except for the circumstance that Nesbitt acted unilaterally, without trying to gain consent or engaging in the legally defined process for such activity. So that was the big error, and I'm amplifying K4RT's comment here. Had Nesbitt started out by planning is 140' tower project and seeking County input and permitting, if Cobb County ultimately balked (nearly certain), he might have won on PRB-1 grounds in a court fight which seemed inevitable in any case (assessment of legal climate and provision for legal challenge expenses I would argue is an essential budget item in that county, when planning such a tower project). It was crucially because Nesbitt presumed immunity through PRB-1 and built solely on his own initiative, that he lost.

    An important second lesson is to be always seeking excellent relationships with your neighbors, before you plan to erect structures and after. If you get their buy-in on your activities and plans, /they/ can come to your aid in any contest with local authorities, and in a case like this one, I think that would have lent significant weight in favor of Nesbitt.

    That Mrs. Nesbitt is continuing the fight absent her husband speaks to what fostering buy-in will get you (she clearly bought-in). Imagine the possibilities if Ms. Siciliano had been made an ally (she was perhaps the only true objector in the neighborhood). That may be a tall order in many situations, but if manageable, fostering interest and being open with your neighbors can turn them into supportive allies. Invite them in the shack on contest weekends, etc. The, "wow cool!" factor ought to work wonders and may become an invaluable resource should a disagreement with local regulators occur.

    If you get the right allies, you may even find yourself in a position to deregulate and restore some more owned-land freedom back to property owners, whose rights are often so restricted, one starts to question whether you can actually /own/ your property, or if your purchase is just gaining you a limited-use license!
     
  5. AA9G

    AA9G Ham Member QRZ Page

    With all due respect to the deceased, 'needing' a 140' tower to communicate with Australia is total bunk. I've seen my JT-65 signals reported from NZ on PSK reporter using a wire mag loop sitting in my spare bedroom.
     
  6. KB7NRN

    KB7NRN XML Subscriber QRZ Page

    AB0FJ said:
    "one starts to question whether you can actually /own/ your property, or if your purchase is just gaining you a limited-use license!"


    Do you pay property taxes? Stop paying and see who really owns your property
    <!-- BEGIN TEMPLATE: ad_showthread_firstpost_sig --><!-- END TEMPLATE: ad_showthread_firstpost_sig -->Few if any have a true Allodial Title in this country.
    https://en.wikipedia.org/wiki/Allodial_title
    Wikipedia's definition is a bit watered down. An Allodial Title means absolute ownership.
     
  7. W1YW

    W1YW Ham Member QRZ Page

    ...so where were your comments on the K3LR superstation thread?.

    Rit was a great guy. I am happy he had some opportunity to enjoy his success.

    Please stop calling him like he was an unknown. How was N4BNM.

    73
    Chip W1YW
     
  8. W1YW

    W1YW Ham Member QRZ Page

    Great analysis. Most people think decisions are rendered as 'right or wrong' . Many are rendered as undecided on those points-- by process alone. Thanks for pointing that out.

    73
    Chip W1YW
     
  9. AA9G

    AA9G Ham Member QRZ Page

    What on earth are you going on about? I think I actually did comment on that thread and it would not have been a negative one. However nobody NEEDS a 140' tower to talk to Australia. Would he WANT one? Heck yeah. I do. But I cannot due to where I live.
    He was arguing in court that he required a 140' tower. I'm saying "No you don't". He already had 3 towers up, one a 70 footer. I'm sure he was a fine man, I make no complaint there. But his legal assertion that he thought the 140' tower was 'covered' under PRB-1 does not fly. There is nothing in PRB-1 that would lead a reasonable person to believe they can just put up whatever they want wherever they want.
    I rather expect he knew full well a 140' tower required permitting and just did not want to go through what would have been a real hassle to do it right. We are taught as hams to 'do it right', to cover the bases, get the permits, do it safely. I just cannot for a minute believe a man of his experience did not know he needed a permit. It defies common sense. That's all I'm saying.
     
  10. W1YW

    W1YW Ham Member QRZ Page

    Obviously Rit was drawing a line which says that PRB-1 supercedes local requirements, including process. The court has, unfortunately, decided otherwise. That doesn't mean that PRB-1 isn't useful, it means you have to spend the time and money in the PROCESS to invoke it.

    The restrictions in place before even seeking exception were clearly onerous. But the courts are saying you have to go through the process anyway.

    73
    Chip W1YW
     
  11. K0MD

    K0MD Platinum Subscriber Platinum Subscriber QRZ Page

    Many of us like to communicate with voice modes or other digital modes, or to contest where stacks/modeling are critical for a competitive advantage. He likely needed more height, especially for the antennas he used (Force 12 C49XR) and the modifications he put in place with them. He stacked them for DX gain on SSB or at least that is what he told me as he had three C49XR's on one tower at one time per my recollection.

    My calls with him over the last several years before the lawsuit revealed that he actually thought through things very well with his station.

    I also believe I heard from someone that the towers were up before the neighbor moved into the development, and ultimately complained and filed the grievance.

    I agree with the other postings that it is best to always follow local ordinances and to get permits before installing a tower and to also maintain harmonious relations with the neighbors if possible.

    Ritner was a great asset to the ham community. May he RIP and his wife is an amazing woman to continue the fight.
     
  12. N2WKL

    N2WKL Ham Member QRZ Page

    Well said my friend.
    73,
    Trent
     
  13. N2WKL

    N2WKL Ham Member QRZ Page

    Well said my friend.
    73,
    Trent, N2WKL
     
  14. W1BG

    W1BG Ham Member QRZ Page

    With all due respect to Rit (and his XYL) as well as to the many opinions expressed, I feel the need to add my own. What I read here (IMO) amounts to a classic example of being given an inch, then taking a mile. The Cobb County regulations, while unarguably being quite onerous, still permitted Rit to erect and have full use and enjoyment of a 70' tower. As such I believe the county more than met their responsibilities to make "reasonable" accommodation under the provisions of PRB1. However, "reasonable accommodation" itself is a vague and ambiguous term. What constitutes "reasonable" to one is unlikely to be considered reasonable to another. Surely someone at the FCC must have foreseen the mountain of litigation (and costs) their lack of specificity would create. This is a battle that is going to be fought and fought, over and over, until someone comes to their senses and makes a formal ruling.

    In my own situation, I would be thrilled to be allowed even a 35' tower. Unfortunately, I am constrained by the CC&Rs of my HOA. While it's true that I willingly signed-on in acceptance of the total prohibition of antennas, believe me, I had no other choice and (acceptable) alternate locations all had the same restrictions. Most of Texas has no zoning ordinances and the explosive growth of the Texas economy has forced home developers to expand into unincorporated areas of heretofore rural land. The result has been a literal photocopying of a set of deed restrictions that in one way or another bar practically everything beyond just living here. The CC&Rs document alone is 1-1/2 inches thick. To get around the OTARD rule the HOA even furnishes Cable TV (Comcast) which includes 3 set top boxes, at least one of which being a DVR. Yes, you can still have a satellite dish, though it's somewhat frowned upon. I have approached my HOA, both in writing as well as in person and both times been given a rejection for any antenna or supporting mast that extends higher than the 6' privacy fence surrounding my property.

    Since I have no mature trees, I ended-up with a 100-watt barefoot rig and a 5-band fan dipole tacked up on the side of my privacy fence with electric fence insulators. No, I certainly haven't won any pileups or contests in this configuration, but I have worked both New Zealand and Australia (without benefit of a 140' tower).

    My point here is I think it's possible Rit might have "pushed the envelope" on what constitutes reasonable accommodation but his biggest mistake was in proceeding before obtaining the required permit(s).
    Merely my 2ยข worth.
     
    Last edited: Nov 1, 2014
  15. KJ4JSN

    KJ4JSN Ham Member QRZ Page

    Beware any input from n2wkl here a ham that opened up a whole can of worms in PSL Florida concerning putting up a tower and how high. Trent's attitude was if I cant have a tower nobody can.Typical northern altitude.
     
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