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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** DA 97-1361 Before the FEDER AL COMMUNICATIONS COMMISSION Washi ngton, D.C. 20554 In the Matter of ) ) Petition of Willie and Chun Ok Brown ) Seeking a Declaratory Ruling that ) a Zoning Ordinance of Burlington ) Township, NJ is Preempted ) Pursuant to Section 25.104 of ) Commission Rules ) Application file No. 21-SAT-DRZ-97 REPORT AND ORDER Adopted: June 30, 1997 Released: July 1, 1997 By the Chief, International Bureau: I. INTRODUCTION 1. In this Order we consider the petition, filed November 15, 1996, on behalf of Willie Brown and Chun Ok Brown ("the Browns") for a Declaratory Ruling that the zoning restrictions of Burlington Township, New Jersey are preempted pursuant to 47 C.F.R.  25.104. The Commission has long recognized that state and local governments have a legitimate and important interest in managing land use in their communities, and has repeatedly eschewed the role of national zoning board. Indeed, section 25.104 seeks to balance local concerns with federal concerns and requires the exhaustion of local review before any federal intervention. Nevertheless, the Commission has a mandate to assure access by U.S. consumers to "a rapid, efficient, nation-wide and world-wide wire and radio communications service with adequate facilities at reasonable charges." Where local regulations are found to be unreasonable obstacles to such access, as in this case, we are required to act and protect this important federal interest. Consequently, for the reasons discussed below, we find that section 25.104 of the Commission's rules preempts the Township's ordinance. II. BACKGROUND AND PROCEDURAL ISSUES 2. The Brown petition states that they are attempting to install a 2.3 meter satellite dish antenna at their home. In April 1996, the Browns filed an application with the Township zoning authorities which proposed to ground mount the antenna on a pole in excess of fourteen (14) feet. Because this proposal was counter to Burlington Township's zoning ordinance, which prohibits the installation of satellite antennas above a height of fourteen feet, the application was denied. 3. In June 1996, the Browns appealed to the Burlington Township Zoning Board, seeking a variance to either pole mount their antenna in excess of the fourteen feet limit or, alternatively, to roof mount the antenna on their home. The application for a variance was also denied. 4. The final step in the Zoning Board appeals process is to petition the Superior Court of New Jersey for relief. The Browns have declined to proceed to the Superior Court of New Jersey, choosing instead to file the present petition. Although Mr. and Mrs. Brown have not exhausted all legal remedies, they have now exhausted their available nonfederal administrative remedies and are, therefore, entitled to petition the Commission for a declaratory ruling under section 25.104. III. POSITIONS OF THE PARTIES 5. The Browns state that compliance with the Township's restriction materially limits reception by their satellite antenna and would impose more than minimal costs upon them in violation of section 25.104. They also contend that the ordinance is not "reasonable" as defined by the Commission because it does not contain a clearly defined health, safety or aesthetic objective for restricting the height of antennas to 14 feet. 6. Burlington Township has failed to respond to the Brown's petition and offers no defense of its ordinance, despite being duly served by the petitioners in accordance with Commission procedures. As a result, the record does not contain any direct rebuttal to the Browns arguments. Given the Township's failure to respond to the Brown's petition, the Commission is entitled to consider the facts, as represented by the Browns, as uncontested. 7. Evidence regarding the Township's position is contained in documents provided by the petitioners: specifically, a copy of sections 19:7-9.2 and 19:7-9.3 of the Burlington Township Zoning Restrictions for Satellite Antennas and a copy of the Resolution and Finding of Fact ("Resolution"), as adopted by the Burlington Township Zoning Board at their July 3, 1996 meeting denying the requested variance. Although these documents give an indication of the Zoning Board's reasoning in denying the Brown's request for a variance, they cannot adequately substitute for a filing by the Township in this matter. 8. The Resolution details the Zoning Board's questioning of Mr. Brown concerning his proposal to install a seven (7) foot dish on the rear portion of his roof. According to Mr. Brown's testimony, the antenna could not be ground mounted because of a "wetlands problem." There is, however, no elaboration in the record on the nature of this wetlands problem. The Board then considered comments from the general public for and against the Browns' application. The Resolution shows that seven "members of the general public" made statements expressing concern about the aesthetics, safety, and possible depreciation of property values associated with the Browns' antenna installation. 9. After the comment period, the meeting was closed to the public and the Zoning Board members discussed the nature of the Township's development, noting that the community consisted of "very high buildings built on very small lots." Next, a zoning officer remarked that most of the satellite dishes in the area were "smaller in size." The Board then asked Mr. Brown if he would consider purchasing a smaller satellite dish antenna. Mr. Brown indicated that he was "not willing to expend the money for same." 10. The Zoning Board concluded that "special reasons do not exist for the relief sought by the applicant," and denied the Browns' request for a variance. The Resolution explains the basis for the Board's decision, stating that the "[a]pplicant's reasons for not obtaining a smaller dish, or one that would comply, is based solely on monetary reasons . . .[,] nor does applicant present any expert witnesses or compelling reasons that would allow the Board to make a finding in his favor." The Resolution states further that the "[a]pplicant has not shown adequate proofs for the Board to allow a variance for the height of the antenna" and asserts that the variance could not be granted without "substantially impairing the intent and purpose of the Zone Plan and Zoning Ordinance of the Township of Burlington." IV. DISCUSSION 11. It appears that Burlington Township, in denying the Browns' request for a variance, relied on a number of factors, including the Browns' unwillingness to purchase a smaller antenna, their lack of "proof" that the antenna could not be located in compliance with the ordinance, and the "substantial impairment" a variance would cause to the Township's Zoning Plan. None of these reasons, however, are persuasive in this case. The Rule 12. Section 24.104 states, in pertinent part: (a) Any state or local zoning, land-use, building, or similar regulation that materially limits transmission or reception by satellite earth station antennas, or imposes more than minimal costs on users of such antennas is preempted unless the promulgating authority can demonstrate that such regulation is reasonable, . . . Materially Limits Reception 13. As noted above, section 25.104 provides that local zoning restrictions that "materially limit reception of earth station antennas, or impose more than minimal costs on users of such antennas" are preempted unless the promulgating authority can demonstrate that the restrictions are reasonable. We conclude that the zoning restrictions at issue in this action "materially limit reception" within the meaning of the rule. Mr. Brown's sworn statement maintains that the Township's 14 foot height restriction and requirement that antennas be ground mounted will "substantially impair" the reception of his satellite dish. The Township offers nothing to rebut Mr. Brown's claims of impairment, appears to have rejected both of the Browns' proposed installation options (pole mounting and roof mounting) and has failed to offer the Browns an alternative that would serve the federal interest in ensuring access to satellite services and promoting competition among communications service providers. Accordingly, we conclude that the Township, in leaving unchallenged the Browns' claim of impairment, has "materially limited" the Browns' reception. More than Minimal Cost 14. The Township Board disparages Mr. Brown's "monetary reasons" for not purchasing a smaller antenna. However, section 25.104 clearly states that a restriction that "imposes more than minimal costs on users" is generally preempted. Moreover, our rule rejects conditioning a permit or authorization upon "expenditure of a sum of money . . . greater than the aggregate purchase or total lease cost of the equipment." Because Mr. Brown's uncontroverted petition states that a "smaller dish would be much higher in price" than the antenna he proposes to install, we conclude that the Board's request that the Browns buy a smaller antenna "imposes more than minimal costs" under the terms of the rule. 15. The Township's request that Mr. Brown purchase a smaller antenna at an additional cost is also in conflict with a longstanding Commission objective to promote competition in the video marketplace. In the 1986 Order, the Commission stated that it "will not permit a state to arbitrarily favor one particular communications service over another . . . [T]he existence of alternative communications media is not a sufficient justification for discriminatory local regulations." Inasmuch as DBS, which uses a smaller, 18 inch antenna, and C-Band, whose antennas are six to seven feet in diameter, are different services, albeit both delivered via satellite, the suggestion that Mr. Brown trade one service for another is inconsistent with this policy and would burden the federal interests in "promoting effective competition among competing communications service providers." Reasonableness 16. As noted above, section 25.104 allows for zoning restrictions that impair reception or impose more than minimal costs on users, if they are reasonable. In order for a regulation to be reasonable it must further a "clearly defined health, safety, or aesthetic objective" and not "unnecessarily burden[] the federal interests in ensuring access to satellite services and in promoting fair and effective competition among competing communications service providers." In addition, section 25.104 requires that the Township, as the promulgating authority, and not the Browns, demonstrate that the ordinance at issue is reasonable. 17. Had the Township responded to the Browns' petition, it might well have been able to shed more light on the concerns which motivated the zoning restriction at issue. However, in view of the record before us, we conclude that the Township has not demonstrated that the regulation is reasonable. Although, as the Resolution suggests, aesthetic concerns may have played a part in the Zoning Board's decision to deny the Browns' request for a variance, the Resolution cannot substitute for a clear statement by the Township indicating the goals underlying its decision. In the conclusion of the Resolution, the Zoning Board asserted that "the relief requested by the applicant cannot be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the Zone Plan and Zoning Ordinance. . ." However, nowhere did the Zoning Board state the "intent and purpose" of the particular zoning ordinance. And although one zoning officer mentioned that homes in the neighborhood tend to be "high buildings, built on very small lots," the regulatory intent of the specific ordinance in question was never explicitly stated and the Township has entered nothing into the record that "clearly defines" its objective. 18. Furthermore, section 25.104 requires the Township to show that enforcement of its restrictions does not unnecessarily burden the above cited federal interests. The Township appears, instead, to have rejected the Brown's proposed installation options, pole mounting and roof mounting, leaving them with no other apparent alternatives for receiving the desired service. Moreover, on account of its failure to respond to the Browns' petition, it presents nothing demonstrating compliance with this prong of the reasonableness standard. 19. In sum, section 25.104 preempts local zoning restrictions that "materially limit transmission or reception by satellite earth station antennas, or impose more than minimal costs on users of such antennas" unless the restrictions are "reasonable." In this case, the Township's denial of Mr. Brown's application and variance request serves to "materially limit" Mr. Brown's reception, the suggestion that he purchase an alternative antenna would "impose more than minimal costs" and the Township has failed to demonstrate that the ordinance at issue is "reasonable." 20. The Commission can neither shoulder nor discharge the Township's responsibilities in this proceeding. In the March Order, it adopted "simple procedures that require only paper filings--not personal appearances"-- from local authorities. However, as previously noted, neither the Zoning Board, nor any other representative of the Township has responded to this petition, nor in any other way met the burden of proof required to demonstrate that the ordinance at issue is reasonable. Therefore, we grant the petition before us and find that Burlington Township Zoning Ordinance 19:7-9.2 and .3 are preempted by 25.104. V. ORDERING CLAUSES 21. Accordingly, IT IS ORDERED, pursuant to authority delegated to the Chief, International Bureau (47 C.F.R. 0.261 a (15)) and section 25.104 of the Commission's rules, 47 C.F.R.  25.104, that the Petition for Declaratory Relief (21-SAT-DRZ-97) IS GRANTED. FEDERAL COMMUNICATIONS COMMISSION Peter F. Cowhey Chief, International Bureau