At 3:30 PM on April 17th, 2018, one of our newer members (David – KN4IOY) that operates a local wireless internet business attended two hearings at the Frederick County Administration Office in Winchester regarding on-going disputes at two distinct locations in western Frederick County. One location is on the Great North Mountain Ridge at the far west edge of the county, and the other slightly east and south of there in the Mountain Falls subdivision of the greater Winchester area. A handful of members from SVARC, in addition to a couple of other hams attended to speak on behalf of the amateur radio interests in these hearings.
The core issue at both locations was whether or not the County’s zoning administrator had rightfully ruled that antenna support structures (i.e. ‘radio towers’) are allowed under current county statutes within areas of the county zoned ‘R5’, Residential Recreational Use. It seems that according to current county statutes, it appears that amateur radio towers are prohibited from existing in areas zoned ‘R5′, where commercial telecommunications towers are allowed under conditional use, at least in the case of the second location. Other issues would be with whether these locations would be for amateur or commercial use, and in both cases, amateur use is being pursued.
In the case of the Great North Mountain location, public hearing occurred from both supporters and opposition of the towers, including neighbors across the street from the location where the tower is erected. One of the final comments when the Board deliberated was that they felt like this tower would easily come down and possibly cause a hazard to the neighbors across the street, in spite of the required engineering analysis and reports done at the county’s request.
With respect to the second location, the issues are a little different. While this property lies within a home owners’ association having restrictive covenants that do not allow amateur radio antennas (unfortunately PRB-1 does not extend to home owners’ associations restrictive covenants at this time), the property was sold to David already having a 30-foot tower erected on it 2010. After acquiring the property in 2013, an additional 100-foot tower was erected at this location.
During the public interaction portion of the second hearing, the associated home owner’s association president spoke and asserted that David was aware that these restrictions when he bought the property, and chose to proceed with adding a second tower in spite of them. No explanation was provided how the 30-foot tower that existed since 2010 had no apparent previous action to remove it prior to David’s acquiring the property in 2013.
While it is pretty clear that the county statute with respect to ‘R5’ zoned property is in conflict with the Federal Communication Commission’s PRB-1 which is ‘intended to give local zoning authorities guidance in enacting and enforcing their ordinances’, the attorney representing the county zoning board administrator went as far as to note that 90 percent of Frederick County is zoned something other than ‘R5’ to allow for amateur radio towers. The Board Supervisor went out of his way to explain to the audience that the board of supervisors have nothing against amateur radio.
Nonetheless, the board voted unanimously against both appeals, upholding that the decisions of the Zoning Administrator’s decision was consistent with the Frederick County local statutes in force at the time of the decision. It seemed irrelevant to them that the county statutes are in conflict with Federal preemption, and eluded that the power to change statutes or override them was not within their area of responsibility, but would be with the actual elected County Board of Supervisors to resolve / revise the statutes.
The next level of appeal would be with the Virginia Circuit Court, which David indicated after today’s hearing that he planned to move forward; however, he did share that he would be seeking ARRL resources / assistance in pursuing this case to bring justice to amateur radio operators with property zoned ‘R5’ in Frederick County, Virginia.
Of course, desirable property exists for valley-wide VHF and UHF repeater systems in parts of the county that are zoned ‘R5’ zoning. Also, there are other locations that may fall within that zoning category on the mountain already having amateur radio towers, including the SVARC tower location. There are at least a dozen tower locations for commercial and amateur interests located in Frederick County along this ridge, which is one reason amateurs have stake in this.
Our best wishes for success to David on our behalf, and I personally ask that you consider how you might support our fellow member who is going to bat for us such that the right precedents get set to allow reasonable amateur radio towers in Frederick County where they can provide the most benefit for recreation and community service.
For more understanding of PRB-1 and how it is codified into law, see on page 11 of the earlier referenced Amateur Radio Opinion Memorandum and Order PRB-1, and see the codified amateur radio regulations (47 CFR Part 97 Subpart A Section 97.15 paragraph (e)) referencing PRB-1 (adopted September 19, 1985).