Case 3:11-cv-00645-RCJ -VPC
Countys Answer
First Defense, Expanded
By Jed Margolin
October 29, 2011
In
the Countys Answer to Complaint (Document 9) the Countys First Defense used a
very compact form of answering Toms Complaint.
FIRST DEFENSE
I Defendant is without sufficient knowledge
or information with which to form a belief as to the truth of the allegations
contained in Paragraphs 1, 2, 3, 4, 5, 6, 8, 9, 10, 11a, 15, 16, 17, 18, 19,
22, 24, 25, 26, 55, 61, 63, 64, 70, 75, 77, 78, 80, 81, 87, 88, 89, and 97 of
Plaintiffs Complaint Seeking Declaratory and Injunctive Relief, and upon such
basis denies said allegations.
II Defendant admits the allegations contained
in Paragraphs 7, 11, 12, 13, 20, 21, 29, 30, 31, 37, 39, 40, 41, 42, 43, 45, 46, 54, 56, 57,
58, 65, 67, 69, and 73 of Plaintiffs Complaint Seeking Declaratory and
Injunctive Relief.
III Defendant denies the allegations contained
in Paragraphs 14, 23, 27, 28, 32, 38, 44, 48, 59, 60, 66, 68, 71, 72, 74, 76,
79, 82, 83, 84, 85, 86, 90, 91, 92, 93, 94, 95, 96, and 98 of Plaintiffs
Complaint Seeking Declaratory and Injunctive Relief.
I
was interested in matching the various defenses to the paragraphs so I have
created this document.
Jurisdiction and Venue
1. This is an action for declaratory and injunctive relief presenting a federal question arising under 47 C.F.R. § 97.15 (b) (2006), a regulation of the Federal Communications Commission ("FCC"), and FCC Opinion and Order PRB-1, Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities, 101 FCC 2d 952, 50 Fed. Reg. 38813 (September 25, 1985) ("PRB-1"). PRB-1 may be found at the following URL: http://wireless.fcc.gov/services/index.htm?job=prb-1&id=amateur&page=1
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
2. This complaint seeks a ruling from this Court that the County failed to fulfill its obligations under 47 CFR §97.15 (b), NRS 278.02085, and the requirements set forth by the Ninth Circuit Court of Appeals in Howard v. Burlingame, 937 F. 2d 1376, 1380 (9th Cir. 1991).
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
3. In addition to other remedies, the Plaintiffs seek to have this Court declare that Building Permit No. 8354 is valid, and that special use permits, as well as building permits, for radio communications masts should be granted in accordance with the original application.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
4. The FCC was created by, and its regulations and orders are authorized by, The Communications Act, 47 USC §151 et seq. The Plaintiffs are FCC-licensed radio amateurs asserting federal preemption of the maximum height for an antenna under the Storey County Code.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
5. This Court has subject matter jurisdiction over this claim for relief by virtue of 28 USC §§ 1331 (original jurisdiction for a "federal question"), and 1337 (original jurisdiction "arising under any act regulating commerce"). Declaratory relief as requested herein is authorized by virtue of 28 USC § 2201 et seq. (declaring rights "in a case of actual controversy within its jurisdiction") and F.R.Civ.P. 57 - Declaratory judgments.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
6. The Court has supplemental jurisdiction over the Plaintiffs' state law claim arising under NRS 278.02085, by virtue of 28 USC §1367 (supplemental jurisdiction that is part of the same controversy) because such claims are so related to claims in this action within the original jurisdiction of this Court that they form part of the same case or controversy under Article III of the United States Constitution.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
7.
Venue lies in this district by virtue of 28
U.S.C. §1391(b)(1) ("where any defendant resides") and (2)
("a substantial part of the property ... is situated"), because the
defendant is located in this judicial district, the property is in
[Defendant admits the allegations
]
8. This action does not concern "wireless communications facilities."
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
Parties
9.
Plaintiffs are natural persons who reside at, and own, the property located at
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
10. Plaintiffs are non-commercial, FCC- licensed amateur (also known as "ham") radio operators and station owners. He holds an Extra Class Amateur Radio operator license, call-sign K5RC. She holds call-sign K7AFO.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
11.
[Defendant admits the allegations
]
11a.
DOES 1-10, are named as Defendants for the simple fact that
their current identities and standing are unknown to Plaintiff. It is believed
that Defendants and each of them, were acting as the agents and representatives
of each other at the time of the ACTS ALLEGED HEREIN. Further, the DOE
Defendants herein are unknown as to whether or not they would have
representative capacity over
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
Background
12.
The dates and events relevant to this action are contained in a timeline
presented by
[Defendant admits the allegations
]
13. Tom and Midge Taormina ("Plaintiffs" or "the Taorminas") also submitted a timeline. It displayed more events than the County's. Exhibit B, incorporated herein by reference. In an e-mail to the County Commission, dated June 6, 2011 (Exhibit C, incorporated herein by reference), the County Manager stated that County staff proposed no challenge to the statements exhibited in applicant's summary timeline, saying: "Staff believes in the strong probability that these events did occur on or about the dates provided by the applicant and recommends you to consider them as factual in order to assess the overall timeline of events."
[Defendant admits the allegations
]
14. The Taorminas are licensed radio amateurs. From 1997 until June 2008, they erected a variety of radio communications masts on their 10-acre parcel. During that time, the position of the Storey County Building Department was that no building permits were required for such structures.
[Defendant denies the allegations
.]
15. Plaintiffs reside on land designated as "open range" which is defined in NRS 568.355, as "unenclosed land outside of cities and towns upon which cattle, sheep or other domestic animals by custom, license, lease or permit are grazed or permitted to roam."
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
16. This is a photograph of wild horses roaming on Plaintiffs' land:
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
17.
This is a photograph looking East across
The circle calls attention to the Plaintiffs' residence.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
18. The Covenants, Conditions and Restrictions of the Highlands Ranches subdivision allow radio communications masts and are not an element of this litigation.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
19. The Taorminas have two radio communications masts less than 45 feet in height for which building permits have been granted and inspections completed, and about which there is no controversy. Those masts were not an element of the Taorminas' special use permit application, described below, and they are not an element of this litigation.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
20. In May 2008, the Taorminas were notified by the Storey County Building Department that they would be required to file a building permit application for two proposed monopole radio communications masts of 120 feet and 195 feet in height.
[Defendant admits the allegations
]
21.
[Defendant admits the allegations
]
22. On receipt of the building permit, work commenced and concrete foundations were poured for the monopole structures. The Storey County Building Department performed compliance completion inspections and approved the foundation work. The inspector found "all conditions observed at this time and date to be in variance (sic) with any Storey County Ordinances..." Exhibit E, incorporated herein by reference.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
23. As the inspection report is a printed form, used for all County inspections, and allows construction to continue, it is self-evident the form is intended to mean that all conditions are in compliance, not variance. Exhibit A at line "7/2008," item F (in which the Community Development Department described the event as "signed off inspection report").
[Defendant denies the allegations
.]
24. The photographs of Exhibit F, incorporated herein by reference, depict the foundations with monopole bases installed, as they were at the time of the second compliance inspection, on July 16, 2008.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
25. Twenty days after the building permit was issued, on July 17, 2008, the County issued a stop work order. Confounded by a stop work order, the Taorminas retained counsel. Over the ensuing months, they exchanged correspondence with the County Deputy District Attorney about the applicable law, especially 47 CFR § 97.15 (b) and NRS 278.02085.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
26.
After the issuance of the building permit, and before the issuance of the stop
work order, the Taorminas incurred significant costs for tower components,
antennas, cabling, connectors and other expensive hardware. See Exhibit G, incorporated herein by reference.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
27.
Having reached an impasse with the County on the law, the Taorminas filed Case
No: 3: 09-CV-00021-LRH-VPC in this Court ("
[Defendant denies the allegations
.]
28.
The Taorminas have faced a wide variety of frustrations presented to them by
the County. In
[Defendant denies the allegations
.]
29. In its Order of June 17, 2010, the Court ruled:
An individual seeking to build a structure that exceeds the height limits identified in section 17.12.044 may seek a special use permit under chapter 17.62. As discussed above, section 17.62.010 authorizes the board of county commissioners to permit certain uses in zones in which the uses are not otherwise permitted where such uses are "deemed essential or desirable for the public convenience or welfare."
[Defendant admits the allegations
]
30. Furthermore, the Court ruled that Plaintiffs' "as applied" claim was not yet ripe for decision:
Because the county has not had the opportunity to apply its zoning regulations, the court cannot determine whether the county has reasonably accommodated the Plaintiffs amateur communications. Thus, until Plaintiff[s] appl[y] for a special use permit, and the county has the opportunity to review the request, the court must deny Plaintiff[s] as applied challenge to the zoning regulations.
[Defendant admits the allegations
]
31. Judgment on the Motion for Summary Judgment was entered on June 21, 2010.
[Defendant admits the allegations
]
32. In accordance with the Court's decision, on December 29, 2010, the Taorminas applied for a special use permit, with voluminous accompanying detail, under Storey County Code § 17.62.010.
[Defendant denies the allegations
.]
33. The text of Storey Code § 17.62.010 reads:
Certain uses may be permitted by the board of county commissioners in zones in which they are not permitted by this title where such uses are deemed essential or desirable for the public convenience or welfare. The procedure for filing of applications, filing fees, public hearings, findings and appeals shall be the same as provided for variances in Chapter 17.60 of this title. (Emphasis added.)
[In answer to Paragraph 33 of Plaintiffs Complaint Seeking
Declaratory and Injunctive Relief, Defendant states that the Storey
34. The text of 47 U.S.C. § 303 reads, in part:
[T]he Commission from time to time, as public convenience, interest, or necessity requires, shall - . . . (l) (1) Have authority to prescribe the qualifications of station operators, to classify them according to the duties to be performed, to fix the forms of such licenses, and to issue them to persons who are found to be qualified by the Commission ...
[In
answer to Paragraph 34 of Plaintiffs Complaint Seeking Declaratory and
Injunctive Relief, Defendant states that 47 U.S.C. § 303 speaks for itself.]
35. The text of 47 C.F.R. § 97.1, Basis and purpose, reads:
The rules and regulations in this part are designed to provide an amateur radio service having a fundamental purpose as expressed in the following principles:
(a) Recognition and enhancement of the value of the amateur service to the public as a voluntary noncommercial communication service, particularly with respect to providing emergency communications.
(b) Continuation and extension of the amateur's proven ability to contribute to the advancement of the radio art.
(c) Encouragement and improvement of the amateur service through rules which provide for advancing skills in both the communication and technical phases of the art.
(d) Expansion of the existing reservoir within the amateur radio service of trained operators, technicians, and electronics experts.
(e) Continuation and extension of the amateur's unique ability to enhance international goodwill.
[In
answer to Paragraph 35 of Plaintiffs Complaint Seeking Declaratory and
Injunctive Relief, Defendant states that 42 C.F.R. § 97.1 speaks for itself.]
36. The text of Public Law 103-408 (J.Res., 103d Congress, 1994) reads:
SECTION 1. FINDINGS AND DECLARATIONS OF CONGRESS.
Congress finds and declares that
(1) radio amateurs are hereby commended for
their contributions to technical progress in electronics, and for their
emergency radio communications in times of disaster;
(2) the Federal Communications Commission is
urged to continue and enhance the development of the amateur radio service
as a public benefit by adopting rules and regulations which encourage the
use of new technologies within the amateur radio service; and
(3) reasonable accommodation should be made for the effective operation of amateur radio from residences, private vehicles and public areas, and that regulation at all levels of government should facilitate and encourage amateur radio operation as a public benefit. (Emphasis added.)
http://thomas.loc.gov/cgi-bin/query/D?c103:1:./temp/~cl03axha5l:: , or
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=103_cong_bills&docid=f:sj90enr.txt.pdf
[In
answer to Paragraph 36 of Plaintiffs Complaint Seeking Declaratory and
Injunctive Relief, Defendant states that the test of Public Law 103-408 (J.
Res., 103d Congress, 1994) speaks for itself.]
Before
The
37. On February 18, 2011, the County Building Department issued a Staff Report that examined the special use permit application of the Taorminas, reported the Department's findings, and made recommendations for granting of a special use permit. The Department subsequently issued a "Revised List of Recommended Conditions of Approval," dated March 3, 2011. Exhibit I, incorporated herein by reference. Both were presented to the Storey County Planning Commission at its meeting of March 3, 2011.
[Defendant admits the allegations
]
38. Aesthetics are not a consideration under Storey County Code § 17.62.010.
[Defendant denies the allegations
.]
39.
Though distributed in advance, it is the practice of
[Defendant admits the allegations
]
40.
The Staff Report of March 3 also finds that the proposed structures will
"impose minimal to no impacts on the surrounding area" (Section 4.4)
and will not cause a noise problem (Section 4.5). These findings were later
repeated to the
[Defendant admits the allegations
]
41.
At Figure 6, in its Staff Report of March 3, the Planning Department finds:
[T]here appears to be adequate travel space for emergency vehicles and other
equipment." This finding was later repeated to the
[Defendant admits the allegations
]
42.
In Section V, Land Use Compatibility & Project Alternatives, of the Staff
Report of March 3, the Planning Department also finds: "While the existing
amateur radio antenna towers are in fact visible to the neighboring areas, they
do not appear to cause detriment or otherwise impact the 'quality of life' that
presently exists in the residential area." This finding was later repeated
to the
[Defendant admits the allegations
]
43.
Section V of the Staff Report of March 3 further states that the Planning
Department staff "recommends that the applicant is granted a special use
permit to operate the amateur radio communications facility." This finding
was later repeated to the
[Defendant admits the allegations
]
44. At Section XI, at page 20 of the Staff Report of March 3, 2011, "[i]n accordance with findings under Taormina v. Storey County, federal and state regulations, and those included in this report," the Planning Department recommended that the Planning Commission approve one of two options, both of which would grant a special permit for four radio communications masts.
[Defendant denies the allegations
.]
45.
On March 3, 2011, the special use permit application was heard in open session
before the Storey County Planning Commission. At that session, the Planning
Department recommended the grant of a Special Permit. The planning
commissioners voted to recommend approval of a special use permit for four
existing radio communications masts. This completed the Planning Commission's
role, and the matter was forwarded to the
[Defendant admits the allegations
]
Before
the Storey
46. In preparation for the hearing before the Storey County Commission, the Planning Department issued a Staff Report dated May 3, 2011, which recommended the grant of a special use permit, with conditions, in concurrence with the vote of the Planning Commission. Exhibit J, incorporated herein by reference.
[Defendant admits the allegations
]
47.
In its Report to the
Mr. Taormina serves as the Emergency Coordinator for the local Amateur Radio Emergency Service, a national volunteer organization, and the Radio Amateur Civil Emergency Service, created by the Federal Emergency Management Agency and the Federal Communications Commission. These services are affiliated with the Department of Homeland Security [reference to an exhibit omitted], and the American Red Cross. .. .
In accordance with the above, access to the amateur radio communication system by key staff may prove to be beneficial and desirable for the public convenience and welfare during times of Emergency Operations Command and extended power or emergency communication outages.
Exhibit J, Section
3.3 (Benefit to
[In
answer to Paragraph 47 of Plaintiffs Complaint Seeking Declaratory and
Injunctive Relief, Defendant states that the Staff Report speaks for itself.]
48.
Though aesthetics are not a consideration for the
[Defendant denies the allegations
.]
49.
To the County Commission, Staff repeated its previous finding for the Planning
Commission, stating: "The existing and proposed amateur radio antenna
towers ... should require no FAA signal lighting or applied coloration."
[In answer to Paragraph 49 of Plaintiffs Complaint Seeking
Declaratory and Injunctive Relief, Defendant states that the Staff Report
speaks for itself.]
50.
In its Report to the
There has been no reported interference with
emergency and non-emergency communications related to existing amateur radio
operation.... It must be noted, however, that the regulation and enforcement of
any form of interference resulting from amateur radio systems is entirely
within the jurisdiction of the Federal Communications Commission (FCC). No
local jurisdiction may impose or enforce regulations related thereto. All
complaints related to alleged interference from the amateur radio system must
be submitted directly to the FCC.
[In
answer to Paragraph 50 of Plaintiffs Complaint Seeking Declaratory and
Injunctive Relief, Defendant states that the Staff Report speaks for itself.]
51. Repeating its report to the Planning Commission, Staff also found:
While the existing amateur radio antenna towers
are in fact visible to the neighboring areas, they do not appear to cause
detriment or otherwise impact the "quality of life" that presently
exists in the residential area. The two proposed monopole towers, exclusively,
in accordance with the recommended conditions of approval, also do not appear
to cause substantial aesthetic impacts to the area.
[In
answer to Paragraph 51 of Plaintiffs Complaint Seeking Declaratory and
Injunctive Relief, Defendant states that the Staff Report speaks for itself.]
52.
The Staff position from its report to the Planning Commission was repeated:
[S]taff recommends that the applicant is granted a special use permit to
operate the amateur radio communications facility. . ."
[In answer to Paragraph 52 of Plaintiffs Complaint Seeking
Declaratory and Injunctive Relief, Defendant states that the Staff Report
speaks for itself.]
53. As it did in its report to the Planning Commission, Staff again found that:
The proposal appears to comply with the provisions of the Storey County Master Plan. Emergency communications during times of power failure may be enhanced by the amateur ham radio operation making the proposal consistent with provisions on the Ma[s]ter Plan for Emergency Response and Planning. No provisions of the Master Plan prohibit the use.
[In answer to Paragraph 53 of Plaintiffs Complaint Seeking
Declaratory and Injunctive Relief, Defendant states that the Staff Report
speaks for itself.]
54.
The properties to the North, East, South, and West, as well as the subject
property, are all 10-acre parcels in the HR-10 (Highland Ranches-10 acre
minimum lot size) zone.
[Defendant admits the allegations
]
55.
Staff provided a copy of Howard v. Burlingame,
937 F2d 1376 (9th Cir. 1991), to the County Commission as its Exhibit B to the
Staff Report, just as it had provided a copy of that case to the Planning
Commission.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
56.
In advance of the hearing before the Storey County Commission, the Taorminas
provided a supplementary document to the Building Department, the
[Defendant admits the allegations
]
57. On May 3, 2011, the special use permit application was heard in open session before the Storey County Commission. The Commission voted to continue action on the application, and requested additional information from staff and the Taorminas on the history of the application, as well as a photo simulation from the Taorminas.
[Defendant admits the allegations
]
Before
the
58.
Fulfilling the request made by the
[Defendant admits the allegations
]
59. Despite repeated requests by the Taorminas, as well as statements by Staff in the Report to the Planning Commission of March 3, as well as in the Staff Report to the County Commission of May 3, that negotiation is required, there was no negotiation with the Taorminas on the height or number of radio communications masts not by the County Manager, the Planning Commission, the Community Development Director, the Senior Planner, the District Attorney (nor any staff member) , nor by the County Commission.
[Defendant denies the allegations
.]
60. From May 15 to June 6, 2011, there was no contact from the County, even though, as the Staff report to the Planning Commission, and the Staff report to the County Commission pointed out, the decision of the Ninth Circuit Court of Appeals in Howard v. Burlingame, 937 F2d 1376, 1380 (9th Cir. 1991), requires the County to: "consider the application, make factual findings, and attempt to negotiate a satisfactory compromise with the applicant."
[Defendant denies the allegations
.]
61. On June 3, 2011, the Taorminas conveyed to the Building Department staff, the County Manager and the District Attorney that even though it was the eve of the planned County Commission meeting, the Taorminas were still prepared to enter into good-faith negotiations with the County Commissioners.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis denies
said allegations.]
62. The County Manager's e-mail to the Commissioners of June 6, 2011 states that the expression that "federal rulings . . . require the Governing Board to "attempt to negotiate a compromise with the applicant" in order to "reasonably accommodate amateur radio antenna towers" is consistent with staff's understanding of PRB-1. (Emphasis in original.) Exhibit L, incorporated herein by reference.
[In
answer to Paragraph 62 of Plaintiffs Complaint Seeking Declaratory and
Injunctive Relief, Defendant states that the Staff Report speaks for itself.]
63.
Through staff, as well as at a meeting on June 6, 2011 with the Building
Department,
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
64. Nonetheless, in a letter dated June 6, 2011, the Taorminas submitted a compromise proposal to Staff and the Commission, known as Motion F, to reduce the number of requested masts from six to five, and reduce the height of the tallest structure proposed from 195 feet to 175 feet. See Exhibit C, incorporated herein by reference.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
65. Motion F reads:
ALTERNATIVE: MOTION F: In accordance with the recommendation of the Community Development Department that this use is in accordance with section 17.62.010 (see letter of April 28, 2011), to grant a Special Use Permit for Planning Case No. 2011-010, allowing the Applicant to maintain three existing amateur radio antenna lattice towers (not to exceed 140, 140 and 110 feet in height) and to install two monopole towers for which building permit # 8354 has previously been granted (not to exceed 175 and 140 feet in height). "Existing" contained herein means that each permitted tower will remain at or lower than its current height and at or less than its structure face. This motion allows the permit holder to move the permitted towers around the property, so long as there are no more than five antenna support structures greater than 45 feet in height, and each tower remains in compliance with the limitations of this Special Use Permit, and the applicable Storey County Building Code, including setbacks and noise requirements for the use of an emergency power generator. This Special Use Permit shall be valid only so long as Mr. or Mrs. Taormina, or a close family member (such as brother, sister, son, daughter, niece, nephew) is a resident at the location.
(Emphasis in original.)
[Defendant admits the allegations
]
66.
Even though visual impact is not a consideration in the language of Storey
County Code § 17.62.010, at the request of
[Defendant denies the allegations
.]
67.
The continuance of the special use permit application was heard at the
[Defendant admits the allegations
]
68.
Senior Planner Osborne confirmed that the Community Development Department had
examined the timeline submitted by the Taorminas and, except for events which
the Building Department could not confirm or deny from its own records, the
Building Department had no disagreement with any of the items in the
[Defendant denies the allegations
.]
69. Senior Planner Osborne also read and offered the Taorminas' compromise proposal as Motion F for consideration by the Commission.
[Defendant admits the allegations
]
70. In his presentation to the County Commission, counsel for the Taorminas pointed out that there had never been any negotiation on the number or height of radio communications masts, and that a hearing, where the Commission controls the agenda and timing, is no negotiation.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
71.
At no time did any member or representative of the
[Defendant denies the allegations
.]
72. At no time did the Commissioners discuss Motion F.
[Defendant denies the allegations
.]
73.
At the end of the public comments, the
Motion: Maintain all existing amateur HAM radio towers which have received approved Storey County building permits and deny those which have not been erected with an approved building permit, in no case will any tower exceed 45 feet in height, and to deny SUP 2011-010 and the owner of property should be in compliance with this within 90 days and if the house sells, forecloses or the passing, only towers with permits may stay, Action: Approve, Moved by Commissioner Sjovangen, Seconded by Vice-Chairman Hess and Chairman Kershaw.
See Exhibit N, incorporated herein by reference.
[Defendant admits the allegations
]
74.
The decision of the
[Defendant denies the allegations
.]
75.
The minutes of the meeting of the
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
The County Did Not Reasonably Accommodate
76. Though the Taorminas repeatedly emphasized the Ninth Circuit's requirement for negotiation, and the Staff acknowledged this requirement, both in its report to the Planning Commission and in its report to the County Commission, Staff never made an offer to negotiate, and never did negotiate with the Taorminas on the subjects of the number and heights of radio communications masts, despite repeated requests by the Taorminas to do so.
[Defendant denies the allegations
.]
77.
Through Staff, including the
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
78. At no time did any member of the Storey County Commission negotiate with the Taorminas.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
79. The Commission never discussed Motion F, the Taorminas' compromise proposal.
[Defendant denies the allegations
.]
80. The Planning Commission recommendation for a special use permit allowing four radio communication masts was not approved.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
81. None of the staff recommendations to grant a special use permit was approved.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
82.
The decision of the
[Defendant denies the allegations
.]
83. Inherent in 47 CFR § 97.15 (b), and NRS 278.02085 is the concept that radio amateurs must be allowed antennas adequate for effective communications.
[Defendant denies the allegations
.]
84. The FCC has held that antenna height is important to effective radio communications.
Because amateur station communications are only as effective as the antennas employed, antenna height restrictions directly affect the effectiveness of amateur communications. Some amateur antenna configurations require more substantial installations than others if they are to provide the amateur operator with the communications that he/she desires to engage in. For example, an antenna array for International amateur communications will differ from an antenna used to contact other amateur operators at shorter distances.
Memorandum Opinion and Order (FCC 85-506), Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities, FCC Order PRB-1 at Ά 25, 101 FCC 2d 952, 50 Fed. Reg. 38813 (September 25, 1985), http://wireless.fcc.gov/services/amateur/prb/index.html
(last visited August 18, 2011) (the foundation Order for 47 CFR § 97.15 (b).
[Defendant denies the allegations
.]
85.
The Taorminas defined and presented their needs for effective communications in
a document entitled "Needs
Analysis," provided with their initial building permit application of August
2008. It was prepared by an electrical engineer, using software developed by
the US Navy and the Voice of America for short-wave and VHF communications. It
was provided to the Planning Commission, and to the
[Defendant denies the allegations
.]
86. The County Commission has failed to reasonably accommodate the needs of the Taorminas for the communications that they desire.
[Defendant denies the allegations
.]
87. By letter of February 28, 2011, including a copy of the Order from the U.S. District Court that followed MacMillan v. City of Rocky River, 748 F. Supp. 1241 (N.D. Ohio), counsel for the Taorminas brought to the attention of the County that municipal immunity can be removed when a special permit granting authority defies the requirements of the law. Exhibit O, incorporated herein by reference.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
88. By email dated June 6, 2011, counsel for the Taorminas again reminded the County of its obligation to engage in good-faith negotiations, and further, that the Taorminas reaffirmed their willingness for a compromise. Exhibit P, incorporated herein by reference.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
89. The County Commissioners had full knowledge of the requirements of the law, as the matter had been extensively briefed in the litigation before this Court, was the subject of a staff report to them, and was brought to their personal attention at the two hearings.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
90. As a result of a failure to negotiate, and a failure to reasonably accommodate the Taorminas' demonstrated communications needs, in the face of the requirements of the law, especially 47 CFR § 97.15 (b) and NRS 278.02085, and the Ninth Circuit's instructions in Howard v. Burlingame (which law was presented to staff well in advance, discussed by this Court in Taormina I, and included in the staff reports to both the Planning Commission and the County Commission), as well as discussion at both sessions of the hearing before the County Commission, the County Commission has demonstrated that it has no intention of obeying the requirements of the law.
[Defendant denies the allegations
.]
DETRIMENTAL RELIANCE AND VESTED RIGHTS
91. In Taormina I, this Court wrote: "Plaintiff has not presented any evidence suggesting that he reasonably relied on the granting of his building permits to his detriment." Taormina I, Document 19, Order, at 8, fn 6. The reason that no evidence was initially submitted to the Court was that the only matter for consideration by the Court at the time was whether the ordinance was legal on its face, in light of 47 CFR § 97.15 (b) and NRS 278.02085.
[Defendant denies the allegations
.]
92. "Because Plaintiffs 'as applied' claim was not ripe for review at the time of the judgment, its dismissal will not bar Plaintiff from challenging the Storey County regulations as applied to him in the future." Taormina I, Document 24, Order, at 3. As we are now in the "as applied" portion of the litigation, the time has come to consider the Taorminas' theory of detrimental reliance to affirm the validity of the building permit.
[Defendant denies the allegations
.]
93.
The Taorminas relied to their detriment on the grant of the building permit
that was later subject to a stop work order. Between the grant of the building
permit and the stop work order they met every test under
[Defendant denies the allegations
.]
94.
The Supreme Court of
The general rule is that any substantial change of position, expenditures, or incurrence of obligations under a building permit entitles the permittee to complete the construction and use the premises for the purpose authorized .. .
Reno v. Nevada First
Thrift,
100
[Defendant denies the allegations
.]
95.
The Storey County Deputy District Attorney conceded that the
In Mr. Taormina's case, your department has apparently already issued building permits for the towers he wishes to build. . . . As such, it would appear to me that you have waived the height limitations set out in SCC § 17.12.044.
Exhibit Q, incorporated herein by reference, at 2-3.
[Defendant denies the allegations
.]
96.
Under
[Defendant denies the allegations
.]
97. Exhibit E, at Figure 5 of the County's Staff Report, shows a photo of the monopoles subject to the Stop Work Order, in sections and on the ground, awaiting erection.
[Defendant is without sufficient knowledge or information with which
to form a belief as to the truth of the allegations
.., and upon such basis
denies said allegations.]
98. This Court should rule that the building permits are valid, and enjoin the County from enforcement action to prevent the completion of construction for those two radio communication masts.
[Defendant denies the allegations
.]