Tom's Towers
Jed Margolin
Tom Taormina (K5RC) wanted to put up a 200 foot tower to add to his six existing (but lower) towers.
Some in the community objected.
Index
A. Tom’s documents submitted to the Storey County Building
Department in August 2008
B. My engineering analysis of Tom’s documents
D. Tom files an application for a Special Use Permit with the County
E. Storey County Planning Commission Staff Report (February 18, 2011)
F. My Comments to the Planning Commission Regarding Tom’s Application for a Special Use Permit
G. Tom’s Statement on the Yahoo Group - 2/23/2011
I. Planning Commission Meeting - March 3, 2011
J. Public Comments Received by the Planning Commission Regarding Tom’s Towers
K.
The Storey County Commissioners meeting on May 3, 2011
M. The Storey County Commissioners meeting on June 7, 2011
A. Tom’s documents submitted to the Storey County Building Department in August 2008
Tom's documents were available at http://vch-nv.us/VCHtowers.html.
Now they are gone, so I am posting them here.
Letter from Tom’s attorney Fred Hopengarten to Storey County - August 13, 2008
August 12, 2008
Brian M. McMahon, Esq.,
Fred Hopegarten, Esq.,
Needs Analysis for Height of Amateur Radio Antenna Support Structures
August 13, 2008
R. Dean Straw
Attachment to Building Permit Application - August 13, 2008
Tom Taormina
B. My engineering analysis of Tom’s documents
I did an engineering analysis of Tom’s documents.
It was my idea to do the analysis and I was not paid for it.
Many of the links in the original analysis are now broken. I have updated and/or added links to local copies of the documents.
jm_antenna_comments_r2.htm
For reading online; has active links to references
jm_antenna_comments_r2.pdf
For printing; links are not active, text can be cut-and-pasted
C. Tom sues the County
Tom sued
Thomas S. Taormina v.
Case 3:09-cv-00021-LRH-VPC Filed 01/15/09
I have downloaded the following documents from Pacer (http://www.justia.com/courts/) which allows you to download court documents for cases in the Federal Courts and in some state courts.
The good news is that anyone can sign up for Pacer. The bad news is that documents (other than judgments) cost $0.08 per page.
Here is the current document history: pacer_2010_0903.pdf
Here are the court documents in Tom’s Antenna case so far. I skipped the ones that are purely procedural, such as “Summons Returned Executed.” The commentary I have added is my own.
doc001-main.pdf Complaint [Tom’s Complaint]
doc001-1.pdf Exhibit A - Exhibit D
doc001-2.pdf Civil Cover Sheet
doc002.pdf
Summons in a Civil Action to
doc007.pdf Answer to Complaint [Storey County Answers Tom’s Complaint]
doc014.pdf Motion for Declaratory Judgment [Tom moves for Declaratory Judgment]
doc014-1.pdf Exhibits
doc014-2.pdf Exhibits
doc014-3.pdf Exhibits
doc014-4.pdf Exhibits
doc015.pdf Stipulation and Order to Extend Deadline to Respond to Plaintiff’s Motion for Declaratory Judgment
doc016.pdf Order [Deadline extended]
doc017.pdf
Opposition to Motion [
doc018.pdf Reply Brief with Memorandum of Points and Authorities in Support of Motion for
Declaratory Judgment [Tom’s response to
doc019.pdf Order [The Court denies Tom’s Motion for Declaratory Judgment and “Because this order
dispositively resolves the issues presented in this case, the Clerk of the Court is directed to
enter judgment in favor of
From:
IV. Conclusion
The court is sympathetic to Plaintiff’s frustration with the county’s inconsistent interpretation of its zoning ordinances. Nonetheless, because the ordinances do not ban or impose strict height limitations on amateur radio antennas, the regulations are facially consistent with PRB-1. Further, because Plaintiff has failed to utilize the existing procedures for obtaining an exception to the antenna height limits, the court cannot determine whether the county has applied the ordinances in a manner that violates PRB-1. Under these circumstances, the court must deny the motion for summary judgment.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Summary Judgment (#14) is DENIED.
Because this order dispositively resolves the issues presented in this case,
the Clerk of the Court is directed to enter judgment in favor of
IT IS SO ORDERED.
DATED this 17th day of June, 2010.
The entire order is interesting and you should read it.
doc020.pdf Judgment in a Civil Case
doc021.pdf Notice of Motion and Motion to Vacate, Alter or Amend the Judgment in this Case
[Tom asks the Court to change its mind and presents an interesting legal argument - re judicata]
doc022.pdf Defendant’s Opposition to Plaintiff’s Motion and Motion to Vacate
[
doc023.pdf
Reply Memorandum in Support of Plaintiff’s Motion to Vacate [Tom replies to
doc023-1.pdf Exhibits
doc023-2.pdf Exhibits
doc024.pdf The Final Order
The following is my summary. Read the whole case.
Tom sued
The Court said, “Yes, they can.”
Tom asked the Court to reconsider, using the argument that if he applies for a Special Use Permit, and is denied, he cannot sue the County again because of res judicata.
The Court said it had not ruled on the part of the case
where Tom said that
This is what Federal Law says (47 C.F.R. § 97.15 http://edocket.access.gpo.gov/cfr_2002/octqtr/47cfr97.15.htm):
[Code of Federal Regulations]
[Title 47, Volume 5]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 47CFR97.15]
[Page 568-569]
TITLE 47--TELECOMMUNICATION
COMMISSION (CONTINUED)
PART 97--AMATEUR RADIO SERVICE--Table of Contents
Subpart A--General Provisions
Sec. 97.15 Station antenna structures.
(a) Owners of certain antenna structures more than 60.96 meters (200
feet) above ground level at the site or located near or at a public use airport
must notify the Federal Aviation Administration and register with the Commission as required by part 17
of this chapter.
(b) Except as otherwise provided herein, a station antenna structure may be
erected at heights and dimensions sufficient to accommodate amateur service
communications. (State and local regulation of a station antenna structure
must not preclude amateur service communications. Rather, it must reasonably
accommodate such communications and must constitute the minimum practicable
regulation to accomplish the state or local authority's legitimate purpose.
[[Page 569]]
See PRB-1, 101 FCC 2d 952 (1985) for details.)
[64 FR 53242, Oct. 1, 1999]
{Emphasis added}
This is what Nevada Revised Statutes (NRS 278.02085 http://www.leg.state.nv.us/Nrs/NRS-278.html) says:
NRS 278.02085 Amateur radio: Limitations on restrictions on amateur service communications; limitations on regulation of station antenna structures; exception.
1. A governing body shall not adopt an ordinance, regulation or plan or take any other action that precludes amateur service communications or that in any other manner does not conform to the provisions of 47 C.F.R. § 97.15 and the limited preemption entitled “Amateur Radio Preemption, 101 F.C.C. 2d 952 (1985)” as issued by the Federal Communications Commission.
2. If a governing body adopts an ordinance, regulation or plan or takes any other action that regulates the placement, screening or height of a station antenna structure based on health, safety or aesthetic considerations, the ordinance, regulation, plan or action must:
(a) Reasonably accommodate amateur service communications; and
(b) Constitute the minimum level of regulation practicable to carry out the legitimate purpose of the governing body.
3. The provisions of this section do not apply to any district organized pursuant to federal, state or local law for the purpose of historic or architectural preservation.
4. Any ordinance, regulation or plan adopted by or other action taken by a governing body in violation of the provisions of this section is void.
5. As used in this section:
(a) “Amateur radio services” has the meaning ascribed to it in 47 C.F.R. § 97.3.
(b) “Amateur service communications” means communications carried out by one or more of the amateur radio services.
(c) “Amateur station” has the meaning ascribed to it in 47 C.F.R. § 97.3.
(d) “Station antenna structure” means the antenna that serves an amateur station, including such appurtenances and other structures as may be necessary to support, stabilize, raise, lower or otherwise adjust the antenna.
(Added to NRS by 2001, 596)
{Emphasis added}
D. Tom files an application for a Special Use Permit with the County
Development Application - undated and unsigned - Thomas S. and Midge A. Taormina
Letter to Osborne - January 7, 2011 - T. Taormina
Supplemental Information For an Amateur Radio Facility Accompanying an Application For a Special Use Permit - December 30, 2010
Brian M. McMahon, Esq.,
Fred Hopegarten, Esq.,
Showing of Need for Height of Amateur Radio Antenna Support Structure - August 12, 2008 - R. Dean Straw
(Appears to be substantially the same as Needs Analysis for Height of Amateur Radio Antenna Support Structures submitted in August 2008 except that several references have been omitted from the new filing.
Exhibits accompanying an Application For a Special Use Permit - undated
Thomas S. Taormina
Midge A. Taormina
Consideration of Tom’s application for a Special use Permit
is on the agenda for the Planning Commission meeting on Thursday, March 3, 2011
at 6:00 pm at the Virginia City Highlands Fire Station,
2011-010 SPECIAL USE PERMIT: By
Request for Special Use Permit to
maintain existing amateur ham radio antenna towers and to install two
additional amateur ham radio antenna towers, all of which will exceed the 45
foot height limitation established by Title 17 of the
For the complete Agenda click here.
A walking tour of the
For the public invitation click here.
If you have comments on this issue, send them to the Storey County Planning Department. Their contact information is at http://www.storeycounty.org/Contact.asp
Making your comments in a public forum, or to me personally, won’t count.
And get your comments in as early as you can. If you present your written comments at the Planning Commission meeting the Planning Commissioners obviously won’t have time to read it.
E.
The Staff Report should be considered a Draft that is subject to revision up until the Planning Commission Meeting.
F. My Comments to the Planning Commission Regarding Tom’s Application for a Special Use Permit
My Comments on Tom’s Supplemental Information For an Amateur Radio Facility Accompanying an Application For a Special Use
PDF - Made with fonted text which can be cut-and-pasted, links are probably not active.
My Comments on Tom’s Showing of Need for Height of Amateur Radio Antenna Support Structure
PDF - Made with fonted text which can by cut-and-pasted, links are probably not active.
G. Tom’s Statement on the Yahoo Group - 2/23/2011 (I made it into an HTML file)
H.
Staff Revised List of Recommended Conditions of Approval
I. Planning Commission Meeting - March 3, 2011
The Planning Commission met on Thursday, March 3, 2011 at the Virginia City Highlands Fire Station.
Virgil moved to adopt Motion A, to allow Tom to put up the new towers. He did it because he didn't want the County sued again. His motion died for lack of a Second.
John moved to require Tom remove all of the towers because
they violate the
The Planning Commission decided to adopt Staff Report Motion B but added some language to make sure it was understood that towers are subject to the 45 foot height limit and not the 35 foot height limit under the ordinance about structures. I don't have the exact wording that they added.
PROPOSED MOTION B: Based on findings and compliance with all conditions and stipulations stated forth in this report, staff moves to recommend that the Storey County Planning Commission approve Case No. 2011-010 to maintain the four (4) existing amateur ham radio antenna towers applicable to this SUP in accordance with the limitations set forth hereby and deny installation of any additional towers on the property located at 370 Panamint Road (APN 003-431-18), Highland Ranches, Storey County, Nevada.
There is some confusion about how many towers Tom already has. I went on the scheduled expedition to Tom's place before the meeting, and from his property it is, indeed, difficult to accurately count the towers.
From the Mail Shed I definitely count five towers.
There is an excellent article about the meeting in the Virginia City News:
http://virginiacitynews.com/tempest-over-vchighlands-towers-erupts-at-meeting-p3694-1.htm
The next step is for the
J. Public Comments Received by the Planning
Commission Regarding Tom’s Towers
I asked for and received copies of the public comments received by the Planning Commission.
There were lots of them so I am putting them on a separate page.
For the public comments as of March 23, 2011 (and updated June 30, 2011) click here.
K. The Storey County Commissioners meeting on
May 3, 2011.
The Storey County Commissioners met on May 3, 2011. It was pretty well attended even though it was held at 2 pm.
Everyone had their say, so it was a long meeting.
1. The County Commissioners did not make a decision on Tom’s application for a Special Use Permit. They directed the Planning Department to compile a list of Tom’s existing towers and their compliance with the County’s Tower Ordinance based on their compliance with the County’s Tower Ordinance at the time Tom put the towers up.
2. Fred Hopengarten (Tom’s attorney) cited a case which held that
the County was required to negotiate with the Applicant (Tom). However, Fred
did not consider the Planning Commission to be the County. He wanted to
negotiate with the
[
When the Virginia City News publishes its article on the meeting I will a post a link to it.
L. More of My Comments
I sent the following comments to the Storey County Commissioners before the meeting. (My comments were somewhat long so I divided them into separate letters.)
jm_scc01.pdf - Third Party
Communications to provide aid during emergencies such as the recent disaster in
jm_scc02.pdf - Signal-to-Noise Ratio to justify the Need For Height for the towers
jm_scc03.pdf - The Noise part of Signal-to-Noise Ratio
Some of the information I was trying to get came too late for the meeting. When it came I sent more letters.
In one of the documents in Tom’s application for a Special Use Permit he asserted that he is a former NASA Engineer. I filed a Freedom of Information Act request with NASA to find out if that is true. (You will have to read the letter to find out the answer.)
Tom received a fair amount of favorable publicity regarding
his preparations for providing emergency communications with
I contacted a Diplomatic Assistant at the Embassy of Japan
in
If you want to know if the Government of Japan gave permission for third party communications read the letter.
Tom responds to my comments about his claim to being a former NASA Engineer, and I respond to his response.
M. The Storey
The County handed Tom's head to
him today.
1. No 195' towers.
2. No 175' tower, which was
Fred's idea of a compromise.
3. The Planning Commission's
recommendation to allow Tom to keep his existing towers was turned down.
Bill (Sjovangen)
made a motion to allow Tom to keep only those towers for which he had obtained
a permit, subject to the 45' height limitation.
Dean (Haymore)
said that Tom had obtained permits for only a 40' and 32' tower.
And that is what the Commissioners
decided.
Tom has 90 days to come into
compliance.
DA Maddox asked the Commissioners
to allow him stay enforcement of the decision to give Tom time (60 days) to go
back to U.S. District Court, which everyone seemed to accept would happen. The
Commissioners said ok.
N.
The County made a timeline of the events in this issue.
Here is the County’s timeline (June 1, 2011 from PDF Properties):
Here are the exhibits:
Exhibit A Storey County Building Department, Permit 8416 for 32’ tower, 9/16/08
Exhibit A-1 ARRL’s discussion of PRB-1 and advice on how to get what you want.
Exhibit B Storey County Building Department, Permit 8417 for 40’ tower, 9/16/08
Exhibit
C Storey County Building
Department, Permit 8354 for “Erection of two Ham Radio towers” [no height
specified], 6/27/08; also structural analysis from Artisan Engineering LLC [
Exhibit D Letter from Virginia City Highlands Ranches Property Owners Association to Storey County Board of Commissioners, (no date)
Exhibit E Memo from Laura Grant (Deputy District Attorney) to Dean Haymore (Director of Storey County Planning, dated July 1, 2008 regarding Tom’s Towers
Exhibit F Storey County Building Department, Compliance Inspection Report for Permit 8354, dated 7/3/08
Exhibit G Storey County Building Department, Stop Work Order, dated July 17, 2008; letter from Dean Haymore to Tom Taormina dated July 7, 2008.
Exhibit H Letter from Lawrence E. Prater (PE) to Tom Taormina, dated July 24, 2008, containing a post-construction inspection report of Tom’s existing 32’ and 40’ towers. (Larry is a member of the Planning Commission, which is why he has recused himself on this issue.)
Exhibit I Permit Application submitted by Tom Taormina, July 25, 2008, for 32’and 40’ towers
Exhibit J Permit Application submitted by Tom Taormina, August 14, 2008, for “Amateur Radio Antenna Support Structures [no height specified] Permit #8354
1. Letter from Fred Hopengarten to ADA Laura Grant, dated August 25, 2008, addressing any “lingering issues” in Tom’s application.
a. PDF pages 1- 7: Fred interprets NRS 278.02085, 47 CFR §97.15(b)), PRB-l, and the Storey County Code in Tom’s favor. (A great deal in Tom’s favor.) Fred also cites a number of cases.
b. PDF page 7: Fred implicitly threatens to make the County pay Tom’s legal expenses if Tom sues the County.
2. PDF pages 8-9: Letter from ADA Laura Grant’s to Brian McMahon (Tom’s attorney) dated August 27, 2008. It appears to be a response to Fred’s letter to her. She points out that a number of Fred’s cases are unpublished and questions whether they would be controlling. And she says:
Mr. Taormina has flouted the laws of this County and the dictates of his homeowners association for many years. He now demands, via counsel, "reasonable accommodation" of his desire to add yet more antenna towers to his already substantial "farm," The County acknowledges its obligation to afford reasonable accommodation, however it has never been asked to do so; neither in the past nor present, Much of this could have been addressed several years ago if he had only made the proper applications. Instead, he must now deal with a situation of his creation.
I look forward to discussing this matter with you further. Please feel free to contact me at anytime.
3. PDF pages 10-15: Fred’s response to Laura’s response.
After sending my letter dated August 25 to you earlier today (August 28, 2008), I have received your letter to Atty. McMahon dated August 27, and your letter to me, dated August 28. In other words, our letters have crossed in the e-mail. Your letters were substantive and worthy of further discussion. I am very grateful for them, as, to date, my client and I have been working somewhat in the dark, receiving varied, and conflicting information.
Thank you for your letters.
Authority Cited is Both Controlling and Published
You have written that you are not
convinced "that the "authority" provided is either controlling
or persuasive. Unpublished federal district court decisions, and the like, are
simply not convincing." Sadly, until August 28th, I had not provided you
with controlling law in your jurisdiction. But, as
The published federal district court case is Howard v. Burlingame, 726 F. Supp. 770 (USDC, N.D. Calif., 1989). The published and controlling 9th Circuit Court case may be found at 937 F. 2d 1376 (9cl1 Cir., 1991), wherein, at fn5, the Court wrote: "(O)rdinance[s] which establish absolute limitations on antenna height ... are ... facially inconsistent with PRB-1."
Fred then cites other cases in our jurisdiction.
He also argues that
Then he says (PDF page 14):
From 1997 until July, 2008, the Applicant has been repeatedly verbally informed by the Storey County Building Department that his towers "did not need permitting," and were "grandfathered" into the 1999 Building Code revisions.
Frankly, I see little purpose in accusing the Taorminas of past guilt, especially where, upon inquiry, they were misinformed by the Building Department. I hope these cross accusations can be eliminated from the dialogue as we go forward. There is no profit in embarrassing those who misinformed the Taorminas. Could we just get past this issue and go forward from where we are today, with the building permit applications now submitted?
My comment here is that, since Tom does not have anything in writing from the County that his towers “did not need permitting”, Fred has opened the door for an inquiry into Tom’s truthfulness and, indeed, his character.
PDF pages 14-15: Fred makes the artful argument that, since the HRPOA does not now have a rule in its CC&Rs regulating towers, the fact that they might have had one in the past, and that Tom violated that rule, is irrelevant.
4. PDF pages 15-21: Letter from Fred to Laura (September 22, 2008) explaining nomenclature.
5. PDF pages 22-23: Letter from Laura to Brian McMahon (September 30, 2008).
Dear Mr. McMahon:
I am in receipt of your, and Attorney Hopengarten's, letters of September 22, 2008. I have reviewed both and respond below.
Firstly, I responded directly to Attorney Hopengarten's earlier letter out of professional courtesy. However, I cannot consider him to be "attorney of record,” therefore I will, in future, rely upon you to keep him informed of events should you so desire.
Secondly, I believe that your client
has been informed that the two (2) building permits he requested for
tower/antenna structures: less than sixty feet (60') were granted so as to
begin bringing the structures on his property within the law. As you have
previously been told, he may have a permit to remove the structure which
presently encroaches on a neighboring property. The issue of re-erecting on
another area of
Lastly, the battle of semantics
and/or definitions in previous correspondence of Attorney Hopengarten
is neither intimidating nor influential to the ultimate outcome of your
client's desires for radio towers/antennae on his property. Storey County Code
Section 17.40.02.0 is quite clear with regard to "accessory use"
structures; a special use permit is required for any structure over sixty feet
(60') long. It matters naught whether the antennae themselves are less than
60', only that the entire structure must be less than 60' or require the
property owner to apply for a special use permit, through the ordinary process
of the laws of
The County is well aware of the limited pre-emption of the Federal Communications Commission and Nevada Revised Statutes. Our ordinances are minimally configured and do not necessarily violate the spirit, or letter, of those laws, Your client, however, has never partaken of the required steps over the years. I can well imagine that, at this point in time, he might feel that the county is being unreasonable. This is, however, completely untrue. Thus far the County has been given scant opportunity by Mr. Taormina to address his hobby. In the event that he wishes to move forward in this matter it will be necessary for him to fellow the laws of this County and make the appropriate applications so that the County may address the issues and ensure that it is fulfilling its obligations to the community.
Please feel free to contact me should you so desire.
6. PDF page 24: Nuisance Complaint of 1/1/2009 filed by Buddy Morton.
7. PDF page 25: Nuisance Hearing Notification
8. PDF page 26:
Reference to Supplemental Information
for an Amateur Radio Facility, 8/12/2008
9. PDF pages 27-32: Letter from McMahon Law Offices (Tom’s attorneys) to Thorndal, Armstrong, Delk, Balkenbush & Eisinger (the County’s outside attorneys) dated September 15, 2009.
I am following up on our Statement of Material Facts, now in final form, to be included in a Motion for Summary Judgment. I enclose it for your review, thoughts, comments and reflection. I am fortunate to work with Fred Hopengarten on the substantive issues of law involving PRB I and 47 CFR §97 .15(b), and the application of that law to these parties and facts. Obviously, his assistance and guidance in these areas has been a useful yardstick for me to measure the merits of the upcoming DRA practice, pursuant to FRCP 56.
After praising Fred’s abilities and legal acumen, McMahon offers to settle the matter as follows:
The alternative is to settle the case, now. To settle this matter, Mr. Taormina would agree to a "stand still," with respect to all antenna support structures in controversy. If the County will grant permits for those existing structures now subject to the Stop Work Order, and lift the Stop Work Order with respect to the two structures that have been permitted but not yet erected, he will not apply for any more tall antenna support structures. He would also waive any claim for legal fees. I attach a proposed settlement for the consideration of your client.
In the proposed settlement Tom would get to keep all of his existing towers and put up the two new towers. In return, he would promise not to put up any more towers higher than 45’ and would not make the County pay his legal fees.
My comments are that Tom’s proposed settlement is not a settlement, it’s an invitation to an unconditional surrender. It didn’t happen, so the County must have turned it down.
Exhibit L Storey County Building Department, Compliance Inspection Report for Permit 8416, dated 9/24/08. (The 32’ tower.)
Exhibit M Storey County Building Department, Compliance Inspection Report for Permit 8417, dated 9/24/08. (The 40’ tower.)
Exhibit N Nuisance Complaint of 1/1/2009 filed by Buddy Morton.
Exhibit O Nuisance Hearing Notification
O. Hopengarten
Timeline.
Note the following:
1. It does not say who prepared it. The Properties in the Microsoft Excel file I received says it was created by “BIZ”.
2. The date in the PDF file (7/2/2011) is the date I converted the Microsoft Excel file to PDF.
The Properties in the Microsoft Excel file says:
Created: Thursday, May 5, 2011 12:37:57 PM
Modified: Monday, June 27, 2011 8:38:22 AM
________________
Re: Items missing from staff timeline
Appears to be a duplicate of the above.
________________
Letter from Pat Whitten (
Shortly after noon today, you received an email from Mr. Taormina’s counsel suggesting the most recent staff report for your June 7th meeting did not mention a suggested alternative that has been discussed by the applicant and staff during the interim period between scheduled meetings.
Specifically, in effort to provide some basis for a possible “negotiated compromise” as required in the FCC PRB-1 Ruling, the applicant thru his counsel, has proposed a sixth alternative motion (F) as they outlined at the May 3rd meeting. Although staff (including your counsel) has not had the opportunity to discuss in detail the proposed language, as submitted it 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 (son, daughter, niece, nephew) is a resident at the location.
P. Adkins Timeline
By Michelle Adkins. (Buddy Morton used it in making his presentation at the June 7 meeting.)
May 29, 2011 (from PDF file Properties)
Here are some of the supporting documents. (The characterizations of the documents are mine.)
1. November 28, 2000 - Letter from Tom Taormina to Rick McDowell, Storey County Building Department. It is regarding the visit that Rick McDowell had with Midge on 11/28/2000. It starts out:
Thank you for coming by today and leaving a copy of page 17 of the revised Storey County Building Codes. My wife informs me that your visit was at the behest of Ms Lydia Hammack, President of the HRPOA, concerning one of my amateur radio towers.
2. April 13, 2001 -
Letter from
The Board of Directors has received
several more complaints regarding the
3. May 4, 2003
- Order
Granting Defendant Highland Ranches Property Owners Association Motion For
Costs and Attorney’s Fees,
4. October 14, 2003 -
Order Denying Motion to Stay Award of
Costs and Attorney’s Fees,
Q. Tom Sues the County Again
September 9, 2011
Plaintiffs: Midge
A
Defendant:
Case Number: 3:2011cv00645
Filed: September 6, 2011
Court:
Office:
Presiding Judge: Robert C. Jones
Referring Judge: Valerie P. Cooke
Nature of Suit: Other Statutes - Constitutionality of State Statutes
Cause: 28:2201 Declaratory Judgement
Jury Demanded By: None
Thomas S. Taormina and
Midge A. Taormina v.
I have downloaded the following documents from Pacer (through http://www.justia.com/courts/) which allows you to download court documents for cases in the Federal Courts and in some state courts.
The good news is that anyone can sign up for Pacer. The bad news is that documents (other than judgments) cost $0.08 per page.
I will try to post the Court documents as soon as I can after they are filed.
Any comments are my own. I am not an attorney so feel free to ignore them.
Be forewarned, the Complaint looks scary, especially where:
1.
Tom asks the Court to strip the
(4) For its complete failure to reasonably accommodate the communications needs of the Taorminas, despite requirements of law well known to them, this Court should strip the individual Commissioners of their municipal immunity, and grant a motion to allow for damages to be brought against the individual commissioners, as well as the County, jointly and severally for attorneys' fees and costs incurred in the prosecution of these actions.
2. Tom informs the Court that he may want to add additional defendants as the case develops. That’s the DOES, as in the plural of DOE, such as in John Doe. (Page 3, line 25 - page 4, line 4):
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 they
would have representative capacity over
The idea seems to be that when you have a weak case, just threaten everyone as individuals for doing their job.
Maybe Tom will add me as a defendant. (If so, I accept legal service at my home address.)
I expect to have more comments about the Complaint before too long.
[
doc001.pdf Complaint
doc001-1.pdf Civil Cover Sheet
[
doc002.pdf Notice of Exhibits To The Complaint For Declaratory And Injunctive Relief Part 1
doc002-1.pdf Exhibit A
doc002-2.pdf Exhibit B-D
doc002-3.pdf Exhibit E-H
doc002-4.pdf Exhibit I
doc002-5.pdf Exhibit J
doc002-6.pdf Exhibit J CONTINUED
doc002-7.pdf Exhibit J CONTINUED
[
doc003.pdf Notice of Exhibits To The Complaint For Declaratory And Injunctive Relief Part 2
doc003-1.pdf Exhibit K
doc003-2.pdf Exhibit K CONTINUED
doc003-3.pdf Exhibit K CONTINUED
doc003-4.pdf Exhibit K CONTINUED
doc003-5.pdf Exhibit K CONTINUED
doc003-6.pdf Exhibit L-N
doc003-7.pdf Exhibit O
doc003-8.pdf Exhibit O CONTINUED
doc003-9.pdf Exhibit P-Q
[
doc004.pdf Notice of Related Case
[
doc005.pdf Certificate of Interested Parties
[
doc006.pdf Proposed Summons to be issued
[Court] 9/14/2011
doc007.pdf Summons issued
If you want to skip my Comments & Things and go directly to the next Court document (Document 8) click here.
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My Comments
& Things #1 The Complaint (Document 1) in Pacer is an image-only document. Acrobat (PDF) is a form of PostScript and may contain fonted text as well as images. Whether text is fonted or is a pure image depends on how the PDF file is created. For example, a scanned document will be a pure image file. A PDF file created directly from a word processor may contain fonted text. A PDF file that contains fonted text is text-searchable and is quotable using copy-and-paste. It may also be easily converted to other formats. If the text is an image, then OCR (Optical Character Recognition) can be used to convert it back to text. (The alternative is to retype it.) I have used Omnipage SE4 to convert the Complaint to text as an html file to make it text-searchable and easy to quote from. There are, necessarily, some differences in formatting. And, despite proofreading, there may still be OCR errors. Therefore, the Pacer PDF file is the controlling document. The html version that I created contains clickable links to various documents such as the Exhibits and the cases, statutes, and rules cited. Since a party to a case may mischaracterize and/or misinterpret references you should always read them for yourself. Court decisions are generally very readable. Judges try to write clearly and understandably so there is no doubt what they mean. For the html version of the Complaint click here. For a separate file of the cases, statutes, and rules cited click here. JM 9/21/2011 |
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My Comments
& Things #2 A. Building Permit 8354 dated 6/27/2011 See 1. It says: Work Description: Erection of two It does not give the height of the two 2. At the bottom is the statement, Permission is hereby granted to do the
work described in this application and ONLY in accordance with the Rules,
Regulations, and Ordinances of the {Emphasis added} 3. The County’s ordinance prohibiting ham
radio towers higher than 45’ without a special use permit goes back to
6/1999. See Exhibit A, Dated 6/1999. 4. I do not see that Tom has presented any
evidence that the County knew that the proposed two towers were to be over
45’ in height. 5. The Building Permit gives a Total
Valuation of $5,000. (Exhibit D) Later, Tom claims he spent $65,273 (Exhibit G) between the day the
Building permit was issued (June 27, 2011) and the Stop Work Permit was
issued (July 17, 2011). That is a large cost overrun, especially for someone
with Tom’s management expertise. Does the $65,273 include the cost of putting a concrete pad on his neighbor’s property and then having
to remove it? B. The Story County Compliance Inspection Report dated July 8, 2011 (Exhibit
E, page 2) states: OK to pour footing at on risk per waiting for varaince
for towers over 45’ (The spelling isn’t perfect but the meaning is clear.) There is a more formal Code Compliance Inspection Report dated July
16, 2011 (Exhibit E, page 3) that says: Comments: Inspection of Concrete Base and Anchors for New Towers. Owner has been advised that JM 9/22/2011 |
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My Comments &
Things #3 In Tom’s Complaint he castigates the Planning Department,
the Planning Commission, and the 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. 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." 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. 63.
Through staff, as well as at a meeting on June 6, 2011 with the Building
Department, 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.
71.
At no time did any member or representative of the 77.
Through Staff, including the
78. At no time did any member of the Storey County Commission negotiate with the Taorminas. Wait a minute. Stop. Back up to Paragraph 70. 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. {Emphasis added} When Tom says
that the Until Tom
filed this second lawsuit, a public hearing was the only place where the And that is
because of The private meeting(s) that Tom wanted would have been a
violation of Tom is the one who (through Fred) refused to negotiate. And about how the Planning Commission (and all the others)
refused to negotiate. Negotiating means making a deal. They can’t do that
because the decision can only be made by the Now Tom is threatening to bring everyone into the case as Defendants, as individuals. He is doing this simply because he didn’t get what he wanted. 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 (4) For its complete failure to reasonably accommodate the communications needs of the Taorminas, despite requirements of law well known to them, this Court should strip the individual Commissioners of their municipal immunity, and grant a motion to allow for damages to be brought against the individual commissioners, as well as the County, jointly and severally for attorneys' fees and costs incurred in the prosecution of these actions. In the next section I believe I can show that he can’t do this. JM 9/23/2011 |
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My Comments
& Things #4 In Tom’s Complaint he brings 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). 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. Good. Then we can bring some more Nevada Law into the case because it is part of the same controversy. The following are the sections of Nevada
Law which say you cannot sue http://www.leg.state.nv.us/nrs/NRS-041.html NRS 41.0307 “Employee,” “employment,” “immune contractor,” “public officer” and “officer” defined. As used in NRS 41.0305 to 41.039, inclusive: 1. “Employee” includes an employee of a: (a) Part-time or full-time board, commission or similar body of the State or a political subdivision of the State which is created by law. (b) Charter school. (c) University school for profoundly gifted pupils described in chapter 392A of NRS. 2. “Employment” includes any services performed by an immune contractor. 3. “Immune contractor” means any natural person, professional corporation or professional association which: (a) Is an independent contractor with the State pursuant to NRS 333.700; and (b) Contracts to provide medical services for the Department of Corrections. As used in this subsection, “professional corporation” and “professional association” have the meanings ascribed to them in NRS 89.020. 4. “Public officer” or “officer” includes: (a) A member of a part-time or full-time board, commission or similar body of the State or a political subdivision of the State which is created by law. (b) A public defender and any deputy or assistant attorney of a public defender or an attorney appointed to defend a person for a limited duration with limited jurisdiction. (c) A district attorney and any deputy or assistant district attorney or an attorney appointed to prosecute a person for a limited duration with limited jurisdiction. (Added to NRS by 1977, 1536; A 1981, 247; 1987, 95, 539; 1989, 695; 1991, 142; 1993, 2261; 1997, 914; 1999, 3319; 2001 Special Session, 213; 2003, 329; 2005, 2430; 2009, 2231) Conditions and
Limitations on Actions NRS 41.032 Acts or omissions of officers, employees and immune contractors. Except as provided in NRS 278.0233 no action may be brought under NRS 41.031 or against an immune contractor or an officer or employee of the State or any of its agencies or political subdivisions which is: 1. Based upon an act or omission of an officer, employee or immune contractor, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation is valid, if the statute or regulation has not been declared invalid by a court of competent jurisdiction; or 2. Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the State or any of its agencies or political subdivisions or of any officer, employee or immune contractor of any of these, whether or not the discretion involved is abused. (Added to NRS by 1965, 1413; A 1967, 992; 1977, 1536; 1983, 2100; 1987, 540) NRS 41.033 Failure to inspect or discover hazards, deficiencies or other matters; inspection does not create warranty or assurance concerning hazards, deficiencies or other matters. 1. No action may be brought under NRS 41.031 or against an officer or employee of the State or any of its agencies or political subdivisions which is based upon: (a) Failure to inspect any building, structure, vehicle, street, public highway or other public work, facility or improvement to determine any hazards, deficiencies or other matters, whether or not there is a duty to inspect; or (b) Failure to discover such a hazard, deficiency or other matter, whether or not an inspection is made. 2. An inspection conducted with regard to a private building, structure, facility or improvement constitutes a public duty and does not warrant or ensure the absence of any hazard, deficiency or other matter. (Added to NRS by 1965, 1413; A 1967, 993; 1977, 1537; 1993, 2886) NRS 41.0339 Circumstances under which official attorney to provide defense. The official attorney shall provide for the defense, including the defense of cross-claims and counterclaims, of any present or former officer or employee of the State or a political subdivision, immune contractor or State Legislator in any civil action brought against that person based on any alleged act or omission relating to the person’s public duties or employment if: 1. Within 15 days after service of a copy of the summons and complaint or other legal document commencing the action, the person submits a written request for defense: (a) To the official attorney; or (b) If the officer, employee or immune contractor has an administrative superior, to the administrator of the person’s agency and the official attorney; and 2. The official attorney has determined that the act or omission on which the action is based appears to be within the course and scope of public duty or employment and appears to have been performed or omitted in good faith. (Added to NRS by 1979, 1733; A 1987, 541) NRS 41.0349 Indemnification of present or former public officer, employee, immune contractor or State Legislator. In any civil action brought against any present or former officer, employee, immune contractor, member of a board or commission of the State or a political subdivision or State Legislator, in which a judgment is entered against the person based on any act or omission relating to the person’s public duty or employment, the State or political subdivision shall indemnify the person unless: 1. The person failed to submit a timely request for defense; 2. The person failed to cooperate in good faith in the defense of the action; 3. The act or omission of the person was not within the scope of the person’s public duty or employment; or 4. The act or omission of the person was wanton or malicious. (Added to NRS by 1979, 1735; A 1987, 543) NRS 278.0233 Actions against agency: Conditions and limitations. 1. Any person who has any right, title or interest in real property, and who has filed with the appropriate state or local agency an application for a permit which is required by statute or an ordinance, resolution or regulation adopted pursuant to NRS 278.010 to 278.630, inclusive, before that person may improve, convey or otherwise put that property to use, may bring an action against the agency to recover actual damages caused by: (a) Any final action, decision or order of the agency which imposes requirements, limitations or conditions upon the use of the property in excess of those authorized by ordinances, resolutions or regulations adopted pursuant to NRS 278.010 to 278.630, inclusive, in effect on the date the application was filed, and which: (1) Is arbitrary or capricious; or (2) Is unlawful or exceeds lawful authority. (b) Any final action, decision or order of the agency imposing a tax, fee or other monetary charge that is not expressly authorized by statute or that is in excess of the amount expressly authorized by statute. (c) The failure of the agency to act on that application within the time for that action as limited by statute, ordinance or regulation. 2. An action must not be brought under subsection 1: (a) Where the agency did not know, or reasonably could not have known, that its action, decision or order was unlawful or in excess of its authority. (b) Based on the invalidation of an ordinance, resolution or regulation in effect on the date the application for the permit was filed. (c) Where a lawful action, decision or order of the agency is taken or made to prevent a condition which would constitute a threat to the health, safety, morals or general welfare of the community. (d) Where the applicant agrees in writing to extensions of time concerning his or her application. (e) Where the applicant agrees in writing or orally on the record during a hearing to the requirements, limitations or conditions imposed by the action, decision or order, unless the applicant expressly states in writing or orally on the record during the hearing that a requirement, limitation or condition is agreed to under protest and specifies which paragraph of subsection 1 provides cause for the protest. (f) For unintentional procedural or ministerial errors of the agency. (g) Unless all administrative remedies have been exhausted. (h) Against any individual member of the agency. (Added to NRS by 1983, 2099; A 1995, 1035) NRS 278.0235 Actions against agency: Commencement. No action or proceeding may be commenced for the purpose of seeking judicial relief or review from or with respect to any final action, decision or order of any governing body, commission or board authorized by NRS 278.010 to 278.630, inclusive, unless the action or proceeding is commenced within 25 days after the date of filing of notice of the final action, decision or order with the clerk or secretary of the governing body, commission or board. (Added to NRS by 1971, 1264; A 1991, 48) NRS 278.0237 Actions against agency: Defenses; attorney’s fees, court costs and interest; remedy cumulative. 1. It is a complete defense to any action brought under NRS 278.0233 against a political subdivision of this State that the final action, decision or order complained of was required by federal or state law or by a regulation of a state agency which became effective after the date on which the application for a permit was filed. 2. The court may award reasonable attorney’s fees, court costs and interest to the prevailing party in an action brought under NRS 278.0233. 3. The remedy prescribed by NRS 278.0233 is in addition to any other remedy provided by law. (Added to NRS by 1983, 2100; A 1995, 1036) In Tom’s letter to Senior Planner Osborne dated January 7,
2011 he based his Application for a SUP on Nonetheless, section 17.62.010 states, "certain uses may be permitted by the board of county commissioners in zones in which they are not permitted by this ordinance when such uses are deemed essential or desirable for the public convenience or welfare." Click here for the Letter to Osborne. Tom failed to show that his proposed new towers were
essential or desirable for the public convenience or welfare. Thus, the Then the Tom’s attorneys really should have looked up the law before they threatened to bring County employees and public officers into the case as Defendants, and to do so as individuals. They did this without legal foundation and, indeed, contrary to Nevada Law. JM 9/24/2011 |
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My Comments
& Things #5 In the following paragraphs from Tom’s Complaint I have emphasized the terms containing the word “effective.” 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. 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 ¶ 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). 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 This is what 47 CFR § 97.15 (b) says: (b) Except as otherwise provided herein, a station antenna structure may be erected at heights and dimensions sufficient to accommodate amateur service communications. (State and local regulation of a station antenna structure must not preclude amateur service communications. Rather, it must reasonably accommodate such communications and must constitute the minimum practicable regulation to accomplish the state or local authority’s legitimate purpose. See PRB–1, 101 FCC 2d 952 (1985) for details.) [64 FR 53242, Oct. 1, 1999] It is reasonable to conclude that the requirement to accommodate amateur radio service communications means “effective” amateur radio service communications. (If it is ineffective then it isn’t really accommodating communications.) NRS 278.02085 Amateur radio: Limitations on restrictions on amateur service communications; limitations on regulation of station antenna structures; exception. 1. A governing body shall not adopt an ordinance, regulation or plan or take any other action that precludes amateur service communications or that in any other manner does not conform to the provisions of 47 C.F.R. § 97.15 and the limited preemption entitled “Amateur Radio Preemption, 101 F.C.C. 2d 952 (1985)” as issued by the Federal Communications Commission. 2. If a governing body adopts an ordinance, regulation or plan or takes any other action that regulates the placement, screening or height of a station antenna structure based on health, safety or aesthetic considerations, the ordinance, regulation, plan or action must: (a) Reasonably accommodate amateur service communications; and (b) Constitute the minimum level of regulation practicable to carry out the legitimate purpose of the governing body. 3. The provisions of this section do not apply to any district organized pursuant to federal, state or local law for the purpose of historic or architectural preservation. 4. Any ordinance, regulation or plan adopted by or other action taken by a governing body in violation of the provisions of this section is void. 5. As used in this section: (a) “Amateur radio services” has the meaning ascribed to it in 47 C.F.R. § 97.3. (b) “Amateur service communications” means communications carried out by one or more of the amateur radio services. (c) “Amateur station” has the meaning ascribed to it in 47 C.F.R. § 97.3. (d) “Station antenna structure” means the antenna that serves an amateur station, including such appurtenances and other structures as may be necessary to support, stabilize, raise, lower or otherwise adjust the antenna. (Added to NRS by 2001, 596) However, neither 47 CFR § 97.15 (b) nor NRS 278.02085 defines what “effective” is. Tom knows what “effective” is. 86. The County Commission has failed to reasonably accommodate the needs of the Taorminas for the communications that they desire. The term “effective” means “whatever it is that Tom desires.” Tom has interpreted 47 CFR § 97.15 (b) and NRS 278.02085 to give him a private right to whatever he desires. What is “effective communications” really? Here is an example. Tom is a world class Contester. In Contesting the goal is to contact as many other stations in as many other places as possible within a specified time period. There are generally different categories, such as single operator stations and multi-operator stations. There may be other rules such as that the other stations must be within a specified geographic area and/or that the transmitter power may be limited to a specified level. (Presumably, this is to level the playing field since not all amateur radio stations are capable of transmitting at the maximum power level allowed to amateur radio stations.) Tom (and two fellow hams) participated in the 2010 North American QSO Party (SSB). SSB means Single Sideband, which is generally used for voice communications in the shortwave frequencies. Other modes of communications include CW (Morse Code), FM( Frequency Modulation), RTTY (Radio Teletype), as well as other modes. The rules were that contacts must be with other stations
in North America plus The contest took place over a 12 hour period from 1800 GMT, Jan 16 to 0600 GMT, Jan 17. (This information is from http://hornucopia.com/contestcal/historicalcal.php). For a reproduction of the list, which shows that a great many contests took place during 2010, click here.) Here is how Tom (and his two fellow hams) did in the 2010 North American QSO Party (SSB). Over a 12 hour period, using only 100 Watts of transmitted
power, they contacted 725 other station in 178 different areas in North
America (There are a great many countries and political subdivisions in This sounds like very “effective” communications to me. The full list from the National Contest Journal Official Contest Results is currently available at http://www.ncjweb.com/ssbnaqp012010.pdf. For a mirror copy click here. Remember, Tom got these results without the two 195’ towers (and associated antennas) that he asserts he needs for “effective communications.” And BTW, although Tom cites the document “Needs Analysis” he has not provided it to the Court in this case. I will also note that “Needs Analysis” was prepared by R. Dean Straw. Mr. Straw is hardly an objective expert. He is a past Director (2007-2008) of the Northern California Contest Club. Tom was a director of that club in 2008-2009. See http://www.nccc.cc/officers.html . For a mirror copy click here. Mr. Straw’s association with Tom disqualifies him as an expert witness in this case. JM 9/25/2011 |
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My Comments
& Things #6 Tom’s attorneys screwed up the Certificate as to Interested Parties required by Local Rule LR 7.1-1 and by Federal Rules of Civil Procedure RULE 7.1 Disclosure Statement. They screwed it up in a material way. This is what they filed (from Document 5): CERTIFICATE OF INTERESTED PARTIES COMES NOW Plaintiffs, Thomas and Midge Taormina, by and through their attorneys, McMahon Law Offices, Ltd., and certifies that the following are the interested parties in this case. 1. Midge A. Taormina, 2. Thomas S. Taormina, 3. 4. 5. 6. Storey County Building Department. AFFIRMATION PURSUANT TO NRS 239B.030 The undersigned hereby affirm that the preceding document does not contain the Social Security Number of any person. Dated this 6th day of September, 2011. McMAHON LAW OFFICES, LTD. Brian McMahon, Esq. Fred Hopengarten, pro hac vice Attorneys for Plaintiff, THOMAS AND MIDGE This is what Local Rule LR 7.1-1 requires (from U.S. District Court for the District of Nevada Local Rules of Practice): LR 7.1-1. CERTIFICATE AS TO INTERESTED PARTIES. (a) Unless otherwise ordered, in all cases except habeas corpus cases, counsel for private non-governmental) parties shall identify in the disclosure statement required by Fed. R.Civ. P. 7.1 all persons, associations of persons, firms, partnerships or corporations including parent corporations) which have a direct, pecuniary interest in the outcome of the case. The Disclosure statement shall include the following certification: “The undersigned, counsel of record for ____, certifies that the following have an interest in the outcome of this case: (here list the names of all such parties and identify their connection and interests.) These representations are made to enable judges of the Court to evaluate possible disqualifications or recusal. Signature, Attorney of Record for ____.” (b) If there are no known interested parties other than those participating in the case, a statement to that effect will satisfy this Rule. (c) A party must promptly file a supplemental certification upon any change in the information that this Rule requires. Interested parties are defined as all persons, associations of persons, firms, partnerships or corporations including parent corporations) which have a direct, pecuniary interest in the outcome of the case. These
representations are made to enable judges of the Court to evaluate possible
disqualifications or recusal. And (b) If there are no known interested parties other than those participating in the case, a statement to that effect will satisfy this Rule. This is an addition to the Disclosure Statement required by Rule 7.1 in the Federal Rules of Civil Procedure: Rule 7.1. Disclosure Statement (a) WHO MUST FILE; CONTENTS. A nongovernmental corporate party must file 2 copies of a disclosure statement that: (1) identifies any parent corporation and any publicly held corporation owning 10% or more of its stock; or (2) states that there is no such corporation. (b) TIME TO FILE; SUPPLEMENTAL FILING. A party must: (1) file the disclosure statement with its first appearance, pleading, petition, motion, response, or other request addressed to the court; and (2) promptly file a supplemental statement if any required information changes. (As added Apr. 29, 2002, eff. Dec. 1, 2002; amended Apr. 30, 2007, eff. Dec. 1, 2007.) It was unnecessary for Tom to list himself and his wife
(the Plaintiffs) or In any event, Tom failed to provide the statements required by FRCP Rule 7.1 and Local Rule LR 7.1-1. Note that Local Rule LR 7.1-1 requires the listing of “all persons, associations of persons, … or corporations including parent corporations) which have a direct, pecuniary interest in the outcome of the case. Does the American Radio Relay League (ARRL) through the American Radio Legal Defense and Assistance Committee, have a direct, pecuniary interest in the outcome of the case? If the ARRL (or its American Radio Legal Defense and Assistance Committee) is providing money (whether it is some or all) to litigate the case, and since Tom is demanding the County pays his attorney fees, then the ARRL would have a direct pecuniary interest in the outcome of the case. I do not make this statement lightly. From Document #19 Report of the
Amateur Radio Legal Defense and Assistance Committee The American Radio
Relay League 2010 Second Meeting
of the Board of Directors The committee has received a
preliminary inquiry from attorney and ARRL Volunteer Counsel Fred Hopengarten K1VR, who is representing Tom Taormina K5RC
in a suit against This document is available at: http://www.arrl.org/files/file/About%2520ARRL/Committee%2520Reports/2010/July/Doc_19.doc For a mirror copy in the original MS Word format click here. For a mirror copy in PDF format click here. (I made it using CutePDF) How did this turn out? I don’t know. I went to the ARRL Web site (http://www.arrl.org)
and typed “ In addition to ARRL Document #19 there is another document that might be relevant: AGENDA, ARRL EXECUTIVE COMMITTEE 9:00 AM Saturday, October 23, 2010 which includes the agenda item: 5. Antenna regulatory matters, RFI matters and other legal matters 5.1. Palmdale Antenna Case (Oral Argument scheduled for November 2, 2010) 5.2. Tom Taormina, K5RC v. This is available at: http://www.arrl.org/attachments/view/News/55081 For a mirror copy click here. If it was on the agenda then it is reasonable to believe it was discussed. Even then, it might have been a discussion of the status of the case and not Tom’s inquiry concerning funds. So, on March 14, 2011 I sent an email to ARRL President Kay Craigie, N3KN, and asked her (among other things) whether the ARRL was giving financial support to Tom in his case, either directly or indirectly. For my email click here. I had forgotten to attach a file so I corrected that. Click here. For the attached file (bottom of page 3) click here. When I didn’t hear from her by March 23 I asked her if she was planning to respond to my email. Click here. She said, “I have acknowledged receipt of your e-mail, and that is all the response I intend to make. 73 - Kay N3KN.” Click here. Therefore, there is reason to believe that the ARRL, either directly or indirectly, is giving (or has given) financial support to Tom either in this case or the previous case. If they have (or are) they should be listed in the Certificate as to Interested Parties required by Local Rule LR 7.1-1 . JM 9/26/2011 |
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My Comments
& Things #7 In my March 14, 2011 email to ARRL President Kay Craigie, N3KN, I mentioned: After this case got started, this
is what Tom’s friends in
The Virgina City Highlands antenna wars continue with General Taormina K5RC directing the troops in full battle mode. It now turns out that another traitor ham in the neighborhood is a ring leader in the "stop K5RC" movement! Ugh! He has apparently gotten copies of Tom's building permit applications and crafted some poorly written rebuttals to the Deputy DA's office. The DDA now says that she is not going to grant building permits for the exist-ing towers because Tom ignored the “law” all these years by not obtaining building permits. Tom is now seeking injunctive relief from the arbitrary and capricious actions of this small-time politician. Tom says, "it appears that we are still QRX on major tower work. Even though we have enough compelling legal arguments to be the USS Enterprise doing battle with a dinghy, this is shaping up to be a time consuming and costly battle." Latest update: "Despite yeoman’s effort by K1VR and the local attorney, the Deputy DA is making no meaningful concessions at this point. Last week, she was steadfast that the 45’ height limit was enforceable and that I would have to apply for a special use permit for each tower. That was challenged and is no longer at the top of the hit parade (although it is still not resolved). Then, I was accused of flaunting (her words) my antennas by ignoring the County requirement for building permits and for violating the CC&R’s prior to 2003. This has all been explained in writing to her and we have a solid case for why we are right, but no concession yet. Today, she added another ridiculous piece to the mix saying that the antennas themselves had to be less than 45’ x 60’ because that number is in a statue relating to buildings. Fred responded to that this afternoon with the mes-sage that only the 80M beams are larger and WHY THE H*** HASN’T SHE GRANTED THE REMAINING PERMITS? Bottom line is that this drama is apparently going to continue for weeks to come." Keep Tom in your thoughts and prayers concerning this issue since it affects all of us regardless of locale.
He defamed me, and he defamed my County.
I exchanged some cordial emails with Steve Smothers (W9DX). Well, mine were cordial. But the result was that they removed the offensive article from their newsletter. See http://www.tdxs.net/bs2008/Sep08.pdf
When I was licensed in 1961 there was something called the Amateur’s Code. Whatever happened to that? Even though they did not use my name, anyone familiar with the issue would know that they were referring to me (“traitor ham”) and that is sufficient for defamation. Did I sue the Texas DX Society? Nope. Did I threaten to sue the Texas DX Society? Nope. Instead, I exchanged mostly-cordial emails with Steve Smother (W9DX) the President of the Texas DX Society. Email from me to Steve, click here. Email from Steve to me, click here. For a copy of the original September 2008 issue of The Bullsheet (the article starts at the bottom of page 3): Click Here The current archive version of the September 2008 issue of The Bullsheet: http://www.tdxs.net/bs2008/Sep08.pdf It was their idea to remove the defamatory article from their archive. Some good did come out of this. In my email to Steve I had complained, “… why is Tom a "General" and I
am only a "ringleader?" I want to be a General, too, ….” After I distributed copies of this exchange to a few interested parties I was offered an appointment to the Virginia City Highlands Navy. Since I was busy with other things in 2008 I did not have
time to issue a proper statement, so I will do that now. Although I was
disappointed to learn that there were no new openings in the Virginia City
Highlands Army (the List was closed after Tom was promoted to General by his
friends in My first assignment is to find some water. JM, ADM (VCHN), 9/27/2011 |
doc008.pdf Summons Returned Executed
The County was served today (9/27/2011) and has 21 days to answer the Complaint.
(The
The clock is running.
Speaking of deadlines, the
The minutes of the June 7 meeting were not approved until the July 5 meeting. There was a meeting on June 21 but approval of the minutes for the June 7 meeting was not on the agenda. (Why was that?)
In any event, the Commissioners gave Tom 90 days to come into compliance with their decision but they would stay enforcement of their decision if he filed a lawsuit within 60 days.
Sixty days from July 5 was September 3. Tom did not file the lawsuit until September 6.
Granted, September 3 was a Saturday, and Monday September 5 was Labor Day.
It doesn’t matter because:
1. The Court’s electronic filing system (CM/ECF) allows you to file a complaint 24 hours a day, 7 days a week.
2. Attorneys are required to file electronically (Special Order 109).
3. The County Commissioners did not exempt weekends or holidays from their already generous time periods.
Therefore, Tom’s deadline for complying with the
Absent an Order from the Court ordering the County to stay the enforcement of its decision, what will the County do if Tom refuses to take the non-permitted towers down?
JM 9/27/2011
October 28, 2011
[
doc009.pdf 10/27/2011 Answer to Complaint
I have converted it to html: doc009.htm
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My Comments
& Things #8 It was easy to convert the County’s document to html because the PDF document that the County filed with the Court uses fonted text as required by Special Order 109: III. ELECTRONIC FILING, F. Form of Documents, 1. PDF Format: All documents shall be filed in PDF format. To every extent possible, the PDF format for the documents shall be searchable. (This can generally be accomplished by converting the document from a word processing format to PDF rather than scanning the document directly to a PDF format.) It will be acceptable for exhibits/attachments to be scanned or imaged in a non searchable format. Tom’s Complaint didn’t do that. It was a pure image file. Note that there is a free program to convert documents in a word processor program to a fonted text PDF file (CutePDF). And there is an inexpensive program to combine PDF files from http://www.a-pdf.com/merger/index.htm. It will also number the PDF pages if you want. Together, the two programs allow you to make a fonted text PDF file from a word processor and combine it with other PDF files even if they were created by scanning documents. For an article I wrote about making PDF files, go to http://www.jmargolin.com/nasa/MakingPDF.htm |
October 29, 2011
In the County’s Answer to Complaint (Document 9) the County’s First Defense used a very compact form of answering Tom’s 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 Tom’s paragraphs so I did. If you are also interested click here.
November 25, 2011
The Court’s File History for the case contains the entry:
Doc No. Dates Description
10 Filed & Entered: 10/28/2011 Notice re AO 85 Consent to Proceed Before a Magistrate
What is this about?
Both parties would have received an email saying something like:
NOTICE PURSUANT TO LOCAL RULE IB 2-2: In accordance with 28 USC § 636(c) and FRCP 73, the parties in this action are provided with a link to the "AO 85 Notice of Availability, Consent, and Order of Reference - Exercise of Jurisdiction by a U.S. Magistrate Judge" form on the Court's website - www.nvd.uscourts.gov. Consent forms should NOT be electronically filed. Upon consent of all parties, counsel are advised to manually file the form with the Clerk's Office. (no image attached) (MLC)
Here is form AO 85.
You may have noticed that this case was assigned to Judge Robert C. Jones and Magistrate Valerie P. Cooke.
Judges in the U.S. District Court system are nominated by
the President of the
From: http://www.uscourts.gov/Common/FAQS.aspx
Q: Who appoints federal judges?
Supreme Court justices, court of
appeals judges, and district court judges are nominated by the President and
confirmed by the United States Senate, as stated in the Constitution. The names
of potential nominees are often recommended by senators or sometimes by members
of the House who are of the President's political party. The Senate Judiciary
Committee typically conducts confirmation hearings for each nominee. Article
III of the Constitution states that these judicial officers are appointed for a
life term. The federal Judiciary, the Judicial Conference of the
Magistrate Judges do not go through this process. From http://www.fedjudge.org/
A United States Magistrate Judge is a federal trial
judge appointed to serve in a
Thus, the two parties in this case have been asked if they are willing to allow their case to be decided by Magistrate Cooke instead of Judge Jones.
1. In order for the case to be decided by the Magistrate Judge, both parties have to consent.
2. The decisions of the two parties (whether to have the case decided by the Magistrate Judge) are not public, which is why the consent form must not be filed electronically. If it were filed electronically, it would be public.
Presumably, even the Judges do not know who gave (or withheld) consent. Of course, if both parties consent, then it is obvious that both parties consented.
Do Judges get pissed off if they have to decide the case, as opposed to having the Magistrate Judge decide the case? After all, it means more work for them.
And even if the case is to be decided by the Judge, the Magistrate Judge still does some of the work. Maybe a great deal of the work.
Does a Magistrate Judge get pissed off if one or both parties withheld consent for her/him to decide the case. Perhaps she/he considers it a personal insult.
Even if Judges and Magistrate Judges do not have direct access to the AO 85 forms they might be able to guess who withheld consent.
If you withhold your consent, and the Judge and Magistrate Judges correctly guess that it was you, will that prejudice them against you?
I have no idea.
Maybe that is something that attorneys know by experience, or perhaps it is just another Dirty Secret.
And, BTW, the U.S. District Court for the District of Nevada is currently short one judge.
For the File History as of yesterday click here.
November 25, 2011
(continued)
[County] 11/16/2011
doc011.pdf Certificate of Interested Parties
The County got it right (as opposed to Tom, who didn’t).
The undersigned counsel of record
for Defendant,
[
doc012.pdf Motion for Leave to Appear
Again, Tom’s attorneys have filed the document as a pure-image file, instead of using fonted text as required by Special Order 109: III. ELECTRONIC FILING, F. Form of Documents, 1. PDF Format:
All documents shall be filed in PDF format. To every extent possible, the PDF format for the documents shall be searchable. (This can generally be accomplished by converting the document from a word processing format to PDF rather than scanning the document directly to a PDF format.) It will be acceptable for exhibits/attachments to be scanned or imaged in a non searchable format.
I have converted the document to html using OCR: doc12.htm .
Tom’s attorneys are asking the Court to waive Local Rule IA 10-2 so that Fred Hopengarten, Esq., may continue to represent them (Tom and Midge) without further documentation and expense.
This is what Local
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LR IA 10-2. ADMISSION TO PRACTICE IN A PARTICULAR CASE. (a) An attorney who is not a member of the Bar of this Court, who has been retained or appointed to appear in a particular case, may do so only with permission of this Court. Application for such permission shall be by verified petition on the form furnished by the Clerk. The attorney may submit the verified petition if the following conditions are met: (1) The attorney is not a member of the State Bar of Nevada; (2) The attorney is not a
resident of the State of (3) The attorney is not regularly
employed in the State of (4) The attorney is a member in
good standing and eligible to practice before the bar of any jurisdiction of
the (5) The attorney associates an active member in good standing of the State Bar of Nevada as counsel of record in the action or proceeding. (b) The verified petition required by the Rule shall be on a form furnished by the Clerk. The verified petition shall be accompanied by the admission fee set by the Court. The petition shall state: (1) The attorney’s office address; (2) The court or courts to which the attorney has been admitted to practice and the date of such admission; (3) That the attorney is a member in good standing of such court or courts, along with an attached certificate from the state bar or from the clerk of the supreme court or highest admitting court of each state, territory, or insular possession of the United States in which the applicant has been admitted to practice law certifying the applicant’s membership is in good standing; (4) That the attorney is not currently suspended or disbarred in any court; (5) Whether the attorney is currently subject to any disciplinary proceedings by any organization with authority to discipline attorneys at law; (6) Whether the attorney has ever received public discipline including, but not limited to, suspension or disbarment, by any organization with authority to discipline attorneys at law; (7) The title and case number of any matter, including arbitrations, mediations, or matters before an administrative agency or governmental body, in which the attorney has filed an application to appear as counsel under this Rule in the preceding three (3) years, the date of each application, and whether it was granted; (8) That the attorney certifies that he or she shall be subject to the jurisdiction of the courts and disciplinary boards of this State with respect to the law of this State governing the conduct of attorneys to the same extent as a member of the State Bar of Nevada; and, (9) That the attorney understands
and shall comply with the standards of professional conduct of the State of (c) An attorney whose verified petition is pending shall
take no action in this case beyond filing the first pleading or motion. The
first pleading or motion shall state that the attorney “has complied with (d) Unless otherwise ordered by the Court, any attorney who is granted permission to practice pursuant to this Rule shall associate a resident member of the Bar of this Court as co-counsel. The attorneys shall confirm the association by filing a completed designation of resident counsel on the form provided by the Clerk. The resident attorney must have authority to sign binding stipulations. The time for performing any act under these Rules or the Federal Rules of Civil, Criminal and Bankruptcy Procedure shall run from the date of service on the resident attorney. Unless otherwise ordered by the Court, such resident attorney need not personally attend all proceedings in Court. (e) In civil cases, attorneys shall have forty-five (45) days after their first appearance to comply with all the provisions of this Rule. (f) In criminal cases, attorneys have fourteen (14) days after their first appearance to comply with all the provisions of this Rule. In addition, the defendant(s) shall execute designation(s) of retained counsel, which shall also bear the signature of both the attorney appearing pro hac vice and the associated resident attorney. Such designation(s) shall be filed and served within the same fourteen (14) day period. (g) In bankruptcy cases, attorneys shall have fourteen (14) days after their first appearance to comply with all of the provisions of this Rule. (h) The granting or denial of a petition to practice under this Rule is discretionary. The Court may revoke the authority of the person permitted to appear as counsel under this Rule to make continued appearances under this Rule. Absent special circumstances, repeated appearances by any attorney under this Rule shall be cause for denial of the verified petition of such attorney. (1) It is presumed in civil and criminal cases, absent special circumstances, and only upon showing of good cause, that more than five (5) appearances by any attorney granted under this Rule in a three (3) year period is excessive use of this Rule. It is presumed in bankruptcy cases, absent special circumstances, and only upon showing of good cause, that more than ten (10) appearances by any attorney granted under this Rule in a one (1) year period is excessive use of this Rule. (2) The attorney shall have the burden to establish special circumstances and good cause for an appearance in excess of limitations set forth in subsection (h)(1) of this Rule. The attorney shall set forth the special circumstances and good cause in an affidavit attached to the original verified petition. (i) The petitioner shall attach to the verified petition a certified list of the prior appearances of petitioner in this District. (j) When all the provisions of this Rule are satisfied, the Court may enter an order approving the verified petition for permission to practice in the particular case. Such permission is limited to the particular case and no certificate shall be issued by the Clerk. (k) Failure to comply timely with this Rule may result in the striking of any and all documents previously filed by such attorney, the imposition of other sanctions, or both. |
Here is the problem:
LR IA 10-2
(c) An attorney whose verified
petition is pending shall take no action in this case beyond filing the first pleading
or motion. The first pleading or motion shall state that the attorney “has
complied with
Tom’s Complaint makes no such statement, and technically, the Summons should not have been issued.
There is also:
LR IA 10-2
(e) In civil cases, attorneys shall have forty-five (45) days after their first appearance to comply with all the provisions of this Rule.
Tom’s Complaint was filed 9/6/2011. From 9/6/2011 to 11/16/2011 is about 71 days, which is more than 45 days. Oops.
I do not expect the County to point this out to the Court. I believe the County wishes to have the case decided on its merits.
However, the failure of Tom’s attorneys to follow the rules could have serious consequences:
LR IA 10-2
(k) Failure to comply timely with this Rule may result in the striking of any and all documents previously filed by such attorney, the imposition of other sanctions, or both.
And BTW, note that:
a. Tom’s attorneys use Word Perfect.
b. They do not do a very good job of proofreading the documents they file. [PlaintiffL 61 \f "WP TypographicSymbols" \s 12s] from page 3:
9. This action, which may be called Taormina II, involves the same parties and many of the same issues. Most particularly, this action focuses on matters that this Court ruled, in Taormina I, by Order of June 17, 2010, were not yet ripe for decision, holding that
Because the county has not had the opportunity to apply its zoning
regulations, the court cannot determine whether the county has reasonably
accommodated the PlaintiffL 61 \f "WP TypographicSymbols" \s 12s 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.
What the Court actually said made more sense:
Because the county has not had the opportunity to apply its
zoning regulations, the court cannot determine whether the county has
reasonably accommodated Plaintiff’s amateur communications. Thus, until
Plaintiff’s applies 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.
And one more thing.
Tom’s Document 12 ends with a Certificate of Service citing NRCP 5(b) and saying they mailed a copy of the document to the County’s attorneys.
NRCP is the Nevada Rules of Civil Procedure. That is
When you file a document using CM/ECF, notification (and a link) are automatically sent to the appropriate parties. The Certificate of Service is supposed to be done the way the County did it in Document 11:
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CERTIFICATE OF SERVICE Pursuant to FRCP 5(b), I certify that I am an employee of Thorndal, Armstrong, Delk, Balkenbush & Eisinger, and that on this date I electronically filed the foregoing CERTIFICATE OF INTERESTED PARTIES with the United States District Court’s CM/ECF Electronic Filing system, which will serve the following parties electronically: Brian M. McMahon, Esq. McMahon Law Offices, Ltd. Phone:775-348-2701 Fax:775-348-2702 E-Mail:brian@mcmahonlaw.org Fred Hopengarten, Esq. Phone:781-259-0088 Fax:419-858-2421 E-Mail:hopengarten@post.harvard.edu Attorneys for Plaintiff Thomas S. Taormina DATED this 16th day of November, 2011. /s/ Mary
C. Wilson An employee of Thorndal, Armstrong, Delk, Balkenbush & Eisinger |
Come on Guys (Fred and Brian), read the Rules and Get With The Program:
Federal Rules of Civil Procedure (December 1, 2010): http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/2010%20Rules/Civil%20Procedure.pdf
Local Rules for the U.S. District Court for the District of Nevada (August 1, 2011): http://www.nvd.uscourts.gov/
They are in: Local Rules -> Local Rules Effective August -> Full Set
Special Order 109, Electronic Filing Procedures: http://www.nvd.uscourts.gov/Files/Electronic%20FilingProcedures.pdf
December 28, 2011
[Court] 12/27/2011
doc013.pdf Minutes of the Court
MINUTE ORDER IN CHAMBERS:
Pursuant to Fed.R.Civ.P. 16 and Local Rule (“LR”) 16-2, a case management conference shall be set before United States Magistrate Judge Valerie P. Cooke as the court concludes that a Rule 16 case management conference will assist the parties, counsel, and the court.
A case management conference is set before this Court on Monday, January 30, 2012 at 10:00 a.m.
In preparation for this case management conference, it is hereby ordered as follows:
A. Case Management Report
The parties shall jointly file a case management report with the Clerk of Court not less than seven (7) court days prior to the case management conference. The case management report shall not exceed ten (10) pages. It is plaintiff’s responsibility to initiate and prepare the joint case management report, and it is defendants’ responsibility to assist in preparation of the case management report.
.
.
.
Federal Rules of Civil Procedure Rule 16 says:
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Rule 16. Pretrial
Conferences; Scheduling; Management (a) PURPOSES OF A PRETRIAL CONFERENCE. In any action, the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences for such purposes as: (1) expediting disposition of the action; (2) establishing early and continuing control so that the case will not be protracted because of lack of management; (3) discouraging wasteful pretrial activities; (4) improving the quality of the trial through more thorough preparation; and (5) facilitating settlement. (b) SCHEDULING. (1) Scheduling Order. Except in categories of actions exempted by local rule, the district judge—or a magistrate judge when authorized by local rule—must issue a scheduling order: (A) after receiving the parties’ report under Rule 26(f); or (B) after consulting with the parties’ attorneys and any unrepresented parties at a scheduling conference or by telephone, mail, or other means. (2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but in any event within the earlier of 120 days after any defendant has been served with the complaint or 90 days after any defendant has appeared. (3) Contents of the Order. (A) Required Contents. The scheduling order must limit the time to join other parties, amend the pleadings, complete discovery, and file motions. (B) Permitted Contents. The scheduling order may: (i) modify the timing of disclosures under Rules 26(a) and 26(e)(1); (ii) modify the extent of discovery; (iii) provide for disclosure or discovery of electronically stored information; (iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial preparation material after information is produced; (v) set dates for pretrial conferences and for trial; and (vi) include other appropriate matters. (4) Modifying a Schedule. A schedule may be modified only for good cause and with the judge’s consent. (c) ATTENDANCE AND MATTERS FOR CONSIDERATION AT A PRETRIAL CONFERENCE. (1) Attendance. A represented party must authorize at least one of its attorneys to make stipulations and admissions about all matters that can reasonably be anticipated for discussion at a pretrial conference. If appropriate, the court may require that a party or its representative be present or reasonably available by other means to consider possible settlement. (2) Matters for Consideration. At any pretrial conference, the court may consider and take appropriate action on the following matters: (A) formulating and simplifying the issues, and eliminating frivolous claims or defenses; (B) amending the pleadings if necessary or desirable; (C) obtaining admissions and stipulations about facts and documents to avoid unnecessary proof, and ruling in advance on the admissibility of evidence; (D) avoiding unnecessary proof and cumulative evidence, and limiting the use of testimony under Federal Rule of Evidence 702; (E) determining the appropriateness and timing of summary adjudication under Rule 56; (F) controlling and scheduling discovery, including orders affecting disclosures and discovery under Rule 26 and Rules 29 through 37; (G) identifying witnesses and documents, scheduling the filing and exchange of any pretrial briefs, and setting dates for further conferences and for trial; (H) referring matters to a magistrate judge or a master; (I) settling the case and using special procedures to assist in resolving the dispute when authorized by statute or local rule; (J) determining the form and content of the pretrial order; (K) disposing of pending motions; (L) adopting special procedures for managing potentially difficult or protracted actions that may involve complex Rule 17 FEDERAL RULES OF CIVIL PROCEDURE 24 issues, multiple parties, difficult legal questions, or unusual proof problems; (M) ordering a separate trial under Rule 42(b) of a claim, counterclaim, crossclaim, third-party claim, or particular issue; (N) ordering the presentation of evidence early in the trial on a manageable issue that might, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a) or a judgment on partial findings under Rule 52(c); (O) establishing a reasonable limit on the time allowed to present evidence; and (P) facilitating in other ways the just, speedy, and inexpensive disposition of the action. (d) PRETRIAL ORDERS. After any conference under this rule, the court should issue an order reciting the action taken. This order controls the course of the action unless the court modifies it. (e) FINAL PRETRIAL CONFERENCE AND ORDERS. The court may hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence. The conference must be held as close to the start of trial as is reasonable, and must be attended by at least one attorney who will conduct the trial for each party and by any unrepresented party. The court may modify the order issued after a final pretrial conference only to prevent manifest injustice. (f) SANCTIONS. (1) In General. On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)–(vii), if a party or its attorney: (A) fails to appear at a scheduling or other pretrial conference; (B) is substantially unprepared to participate—or does not participate in good faith—in the conference; or (C) fails to obey a scheduling or other pretrial order. (2) Imposing Fees and Costs. Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses—including attorney’s fees—incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust. (As amended Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.) |
Local Rule (“LR”) 16-2 says:
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LR 16-2. PRETRIAL CONFERENCES. Unless specifically ordered, the Court will not conduct pretrial conferences. A party may at any time make written request for a pretrial conference to expedite disposition of any case, particularly one which is complex or in which there has been delay. Pretrial conferences may be called at any time by the Court on its own initiative. |
Apparently, the Court does not usually conduct pretrial conferences.
Why here?
Did one of the parties request it?
If they did, it is not on Pacer. For the current Docket Report click here.
Note that the entry on 10/27/2011 states:
Discovery Plan/Scheduling Order due by 12/11/2011. (Kolvet, Brent)
There is no evidence that this was done. Oops.
Perhaps the parties forgot.
Perhaps they could not agree to a schedule.
Now they have to, or face sanctions.
I called the Clerk’s Office today and asked if this case management conference is open to the public.
She checked, and said “yes.”
Note that one of the purposes of a pretrial conference is to facilitate settlement. {Federal Rules of Civil Procedure Rule 16 (a)(5).}
I asked if that would be open to the public, too.
She said that part could be sealed. If it is, the public could not be there for that.
Also note that Fred’s Motion for Leave to Appear (doc012.pdf) has not been acted on yet. In that Motion:
Plaintiffs, THOMAS S. TAORMINA, and MIDGE A. TAORMINA, by and through their attorneys, Brian M. McMahon, Esq., of McMahon Law Offices, Ltd., and Fred Hopengarten, Esq., of the District of Columbia Bar, hereby request that this court waive Local Rule IA 10-2 for this lawsuit and this lawsuit only, so that Fred Hopengarten, Esq., may continue to represent them without further documentation and expense.
I discussed this previously. Click here.
The case management conference is scheduled for January Monday, January 30, 2012 at 10:00 a.m. I assume it will be at the
The last time I was there was about a year ago.
Unless things have changed:
1. The parking lots are for permit-holders only.
2. There is some street parking across from the building, but not very much. And it is metered, so bring lots of coins.
3. You have to go through security.
a. Bring some Identification. A driver’s license is preferred.
b. Do not bring firearms, knives, or other items that could be used as weapons.
c. The security staff is polite and professional.
Maybe I’ll see you there.
January 18, 2012
Although the deadline for filing the Case Management Report is not until tomorrow, it was filed today.
[
doc014.pdf JOINT DISCOVERY PLAN AND SCHEDULING ORDER PURSUANT TO FRCP RULE 26(F) AND LOCAL RULE 26-1(e)
and
[
doc15.pdf JOINT CASE MANAGEMENT REPORT
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My Comments
& Things #9 Tom’s attorneys finally filed PDF documents that are text-searchable (i.e., contains fonted text) as required by Special Order 109: III. ELECTRONIC FILING, F. Form of Documents, 1. PDF Format. The parts of the documents they filed today that have caught my attention from Document 14 (doc014.pdf) are: A. Page 2, line 25 – page 3, line 1: 4. Interim Report Interim Report stating the time the parties estimate will be required for trial, giving three (3) alternative available trial dates, and stating whether, in the opinion of counsel who will try the case, trial will be eliminated or its length affected by substantive motions: February 23, 2011, 60 days before discovery cut-off. A trial could be eliminated by a substantive motion. I assume that means a Motion For Summary Judgment. A trial could also be eliminated by a negotiated settlement but, at this point, if there is to be a negotiated settlement both sides are playing Chicken. B. Page 3, lines 12 – 23: IV. Stipulations Regarding
Limitations or Conditions or Additional Discovery 1. Discovery will be needed on the following subjects: any non-privileged matter that is relevant to any party’s claim or defense. 2. Discovery should not be conducted in phases or be limited to or focused on particular issues. 3. The parties do not anticipate any issues about disclosure or discovery of electronically stored information. 4. The parties have not reached any agreements regarding assertion of claims of privilege or of protection as trial-preparation material. 5. The parties agree that no change should be made in the limitations on discovery imposed under the FRCP rules or by the local rules except that each party may serve 35 interrogatories instead of 25. It looks like this is going to be a free-for-all. The parts that have caught my attention from Document 15 (doc015.pdf) are: A. The Parties agree on very few facts. Mostly, they disagree. B. Page 4, lines 11 -14: 5. Additional Parties Plaintiffs do not expect to join additional parties, or otherwise amend the pleadings (except to name such Doe parties as may be discovered). It sounds like Tom is fishing for additional Defendants. C. Page 4, lines 15 – 23: 6. Contemplated Motions a. Plaintiffs’ Motions i. Summary Judgment Plaintiffs plan to move for Summary Judgment, pursuant to Rule 56, Fed. R. Civ. P. As Plaintiffs contend there are no genuine disputes as to any material facts, Plaintiffs anticipate this motion will decide all of Plaintiffs’ claims, including vested rights, detrimental reliance, reasonable accommodation, and preemption as applied. Tom is planning to win on Summary Judgment, as “there are no genuine disputes as to any material facts”. Yes, there are. There are lots of disputed material facts. Just read the current document. D. Page 4, line 24 – page 5, line 2: 7. Pending Motions To waive More than fourteen (14) days having passed, see LR 7-2, no opposition has been filed. Unless this motion is granted, Plaintiffs’ ability to continue will be materially impaired. Although motions that are unopposed are generally granted I think it is the Court’s discretion whether or not to waive the rules. If Fred is not allowed to appear in this case, Tom is in serious trouble. E. Page 5, lines 16 – 27: 9. Necessary Discovery a. Plaintiffs’ Planned Discovery i. Requests for Admission Plaintiffs will serve at least one set of Requests for Admissions. ii. Written Interrogatories Plaintiffs will serve at least one set of interrogatories. iii. Requests for Production or Inspection Plaintiffs will serve at least one set of Requests for Production. iv. Depositions At this time, Plaintiffs do not plan to take any depositions. (Emphasis added} That’s good. Depositions can be brutal. But, page 6, lines 1 – 11: a. Defendant’s Planned Discovery i. Requests for Admission Defendant may serve at least one set of Request for Admissions ii. Written Interrogatories Defendant may serve at least one set of interrogatories. iii. Requests for Production or Inspection Defendant may serve at least one set of Requests for Production. iv. Depositions Defendant may wish to depose Mr. Taormina. {Emphasis added} Sorry, Tom. F. Page 6, lines 18 – 25: 10. Discovery of Electronically Stored Information (“ESI”) Plaintiffs will require Defendants to produce any relevant e-mail, text messaging, Twitter transmissions, etc., among the county commissioners, between any county commissioner and county staff, between any planning commissioner and staff, between any planning commissioner and county commissioner, between any planning commissioner and member of the public, and between any county commissioner and member of the public. This should be interesting. What does Tom expect to find? If the products of Discovery are not required to be made public we may never know. G. Page 7, line 18 – page 8, line 3: 17. Settlement Prospects Plaintiffs believe the prospects
for settlement are poor. The parties have been represented by counsel since
2008, administrative hearings before the Planning Commissioners and the That looks plainly prejudicial to me. It reads like a Motion For Summary Judgment. Tom’s attorneys (Fred and Brian) just can’t resist beating the drums for their side. H. Page 9 – Certificate of Mailing. They screwed it up again by using a form that would be proper if this case was being heard in a Nevada District Court where documents are filed on paper and you mail a copy to the other party (or parties). But this case is being heard in U.S. District Court using CM/ECF (Case Management/Electronic Case Filing). With a few exceptions you don’t mail documents. You file documents electronically, both you and the other party (or parties) are notified electronically (by email), and the email contains a link allowing all of the parties to download one free copy of the document. If you screw it up, you can download the document from Pacer for $0.08 per page. Since I am not a party to this case that is how I am getting the documents. :-( Since this is costing me money I am thinking about accepting advertising for this blog. I could contact the companies who advertise in QST (the ARRL’s journal): http://www.arrl.org/ and http://www.arrl.org/qst . I’ll start with the companies who sell towers. |
January 19, 2012
The following entries appeared in the Docket Report today:
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01/19/2012 |
16 |
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01/19/2012 |
17 |
NOTICE of Docket Correction to (# 16 ) Notice for
Designation of Local Counsel &Verified Petition as to Fred Hopengarten Requirement is hereby RESCINDED AND STRICKEN pending decision of Plaintiffs 12 MOTION
for Leave to Appear Pro Hac Vice. to waive |
Fred will be allowed to continue to represent Tom pending a decision on his Motion for Leave to Appear Pro Hac Vice (Document 12).
For the Docket Report click here.
January 31, 2012
I went to the hearing yesterday.
Magistrate Judge Valerie Cooke was the presiding Judge.
There was a Court Clerk.
The County was represented by Brent Kolvert.
Tom was represented by Brian McMahon. Fred Hopengarten made an appearance by telephone. (It was audio only but I like the incongruity of the phrase.)
There were only two members of the Public present: Michelle Adkins and myself.
The hearing started promptly at 10:00 am.
Judge Cooke started by noting that Fred’s motion (to waive the rules to allow him to appear pro hac vice) had not been acted on yet. She recommended that he send a letter to Judge Jones to remind him. She added that although many attorneys are afraid that sending such a letter to a judge will annoy the judge, most judges welcome the reminder.
After discussing some of the dates in the Joint Case Management Report Judge Cooke noted that “this is a political as well as a legal issue.”
She also said that she would like the issue to be resolved by negotiation.
The remainder of the time was spent finding a date for the next hearing that was convenient for all parties. I believe the date that worked for the next hearing is Monday, March 12 at 11:00am.
Then Judge Cooke adjourned the hearing. She did not use a gavel. (It seemed somehow incomplete without a gavel, like leaving out the last note of a chord being played note-by-note.)
Courtroom 1 is beautiful and functional. There is lots of nice wood. There are convenient doors for the jurors and the Judge to enter and leave the Courtroom. The benches for the public are padded and comfortable. The room is acoustically dead but the sound system is very well designed so that you can clearly hear everyone. I assume the other Courtrooms are similarly designed.
The following entry appeared in the Docket Report today:
01/30/2012 18 SCHEDULING ORDER re 14 Proposed Order : Discovery due by 4/23/2012. Motions due by 5/22/2012. Proposed Joint Pretrial Order due by 6/20/2012. Signed by Magistrate Judge Valerie P. Cooke on 1/30/2012. (Copies have been distributed pursuant to the NEF − DRM) (Entered: 01/31/2012)
For the Docket Report as of today click here.
The entry refers to Document 18. Click here for doc018.pdf .
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My Comments
& Things #10 Judge Cooke noted that “this is a political as well as a legal issue.” Ok. In this context I will define “political” as meaning that
a number of If the issue is to be resolved by negotiations, then it’s a new game. It’s a poker game. I see the results being somewhere between the following two extremes: 1. Tom gets to keep the two towers (40 ft and 32 ft) that have valid permits; the others come down; Tom pays the County’s legal expenses. 2. Tom gets to keep his existing towers; he gets to put up as many additional towers as he wants, as high as he wants; the County pays Tom’s legal expenses. Those are the extremes. The result could be somewhere in-between. Where do you think the result should be? If you have an opinion you should send it to the If you don’t live in Pissed off voters could conceivably sue the County for not enforcing the Ordinances and Codes. That’s if the If the case goes to trial and the County loses, then they are not the bad guys. The Court is. That is one of the things that gives the County a stronger hand in this Negotiations Game. And, BTW, while Negotiating is a poker game, going to trial (“Legal”) is a slot machine (or your favorite dice game). |
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My Comments
& Things #11 This is my take on the case. 1. In 2. The Court (with
a different judge than in the current case) made a mistake. The Court said
that Tom had a remedy under Chapter 17.62 SPECIAL USES SectionNo(17.62.010) Applicability. 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. (Ord. 159 §. 2(part), 1999) See http://www.storeycounty.org/countycode/detail.asp?id=17.62.010 The reason the Court made a mistake is because 17.62.010 is much more restrictive than PRB-1. 3. When Tom filed a motion asking the Court to reconsider its decision he made a mistake. Instead of pointing out that 17.62.010 is more restrictive than PRB-1 Tom said that, if he filed an application for a Special Use Permit, and the application were denied, res judicata would prevent him from suing the County again. The Court assured him if his Application for a Special Use Permit were denied he could, indeed, sue the County again.
4. When Tom filed
his Application for a Special Use Permit he made a mistake. In Tom’s letter
to Senior Planner Osborne dated January 7, 2011 he based his Application for
a Special Use Permit on In the Planning Commission meeting and the County Commissioners meeting I never heard Fred explain why having reliable communications with Europe and Asia was “essential or desirable for the public convenience or welfare.” I also don’t see it in the Complaint in Taormina 2. Note that the computer program used in his Needs Analysis for Height of Amateur Radio Antenna Support Structures (“Needs Analysis”) uses data particular to the location of the tower. Tom has never made this data file public so that the results of the computer program can be verified. From Needs Analysis page 6: The process starts by using the USGS National Elevation Dataset terrain data for the exact latitude and longitude of each of the antenna-support locations in VC Highlands, Nevada. This USGS terrain data is used as input for the HFTA (High Frequency Terrain Assessment) program. HFTA uses the Taorminas’ actual (not theoretical) terrain profiles from each proposed support structure location and the actual antenna parameters (free-space antenna gain and height) as inputs. It thus provides the actual antenna gain and take-off (elevation) angle data as output. The output from HFTA is then used as the antenna input to the VOAAREA program (a subset of VOACAP) to produce Area Coverage maps. VOACAP is an HF Propagation Analysis software tool developed by the US Department of Commerce / Institute for Telecommunication Sciences over the last four decades. This software suite is in the public domain, and was made possible by funding from the Voice of America (VOA), the US Army and the US Air Force. Tom also failed to disclose that the author of Needs Analysis (R. Dean Straw) is a personal friend of his and, as a fellow member of the Northern California Contest Club, has a personal interest in the outcome of the issue. 5. The County has made some mistakes, too, but not as many as Tom. The County let Tom get away with violating the County Ordinance (regulating the height of towers) for years despite one or more complaints filed by Tom’s neighbors. 6. When the County Commissioners made their decision they failed to explain their reasons. |
February 6, 2012
[Court] 1/31/2012
doc018.pdf Scheduling Order
This is what the Docket Report says:
01/30/2012 18 SCHEDULING ORDER re 14 Proposed Order : Discovery due by 4/23/2012. Motions due by 5/22/2012. Proposed Joint Pretrial Order due by 6/20/2012. Signed by Magistrate Judge Valerie P. Cooke on 1/30/2012. (Copies have been distributed pursuant to the NEF − DRM) (Entered: 01/31/2012)
[Court] 2/1/2012
doc019.pdf Minutes of Proceedings
This is what the Docket Report says:
01/30/2012 19 MINUTES OF PROCEEDINGS − Case Management Conference held on 1/30/2012 before Magistrate Judge Valerie P. Cooke. Crtrm Administrator: LGM; Pla Counsel: Brian McMahon and (By telephone) Fred Hopengarten; Def Counsel: Brent Kolvet; Court Reporter/FTR #: 9:59:35 − 10:12:46; Time of Hearing: 9:59 a.m.; Courtroom: 1; The Court notes it is the District Court who will decide Mr. Hopengarten's motion for leave to appear pro hac vice 12 . The Court approves the parties' proposed discovery plan and scheduling order 14 . Calendar Call set for 8/20/2012 08:30 AM in Reno Courtroom 6 before Chief Judge Robert C. Jones. Trial set for 8/28/2012 09:00 AM in Reno Courtroom 6 before Chief Judge Robert C. Jones. A Case Management Conference is set for 3/12/2012 at 11:00 AM in Reno Courtroom 1 before Magistrate Judge Valerie P. Cooke. Counsel shall file a joint or separate case management report by no later than the close of business on Thursday, March 8, 2012. IT IS SO ORDERED. (Copies have been distributed pursuant to the NEF − LGM) Modified on 2/1/2012 to reflect there is no jury demand in this case. (LGM) (Entered: 02/01/2012)
February 8, 2012
Since Judge Cooke has noted that “this is a political as well as a legal issue” and said that she would like the issue to be resolved by negotiation, I have encouraged Storey County citizens to let their County Commissioners know how they think the issue should be negotiated.
Michelle Adkins gave me a copy of her comments to the Commissioners, which I am posting here.
Michelle’s letter is so good that I also converted it to html and added active links to the Exhibits.
For Michelle’s letter and exhibits click here.
February 11, 2012
I sent my comments to the County yesterday.
My email said:
Dear Storey County
Commissioners Kershaw, Sjovangen, and Hess and
District Attorney Maddox.
At the January 30, 2012 hearing in
U.S. District Court Judge Cooke noted that “this is a political as well as a
legal issue.”
She also said that she would like
the issue to be resolved by negotiation.
To mix metaphors from poker and
retailing:
1.
The County is holding a strong hand.
2.
Don't give away the store.
See the attached file for my
comments.
Please make it part of the public
record.
Regards,
Jed Margolin
1981 Empire Rd.
VC Highlands, NV 89521-7430
The attachment was a PDF file. For my comments click here.
For an html version of my comments click here.
Jed Margolin
Virginia City Highlands, NV
Started February 19, 2011
2/23/2011 3/2/2011 3/27/2011 5/7/2011 5/31/2011 7/2/2011 7/15/2011 9/9/2011
9/21/2011 9/22/2011 9/23/2011 9/24/2011 9/25/2011 9/26/2011 9/27/2011 10/28/2011
10/29/2011 11/25/2011 12/28/2011 1/18/2012 1/19/2012 1/31/2012 2/6/2012 2/8/2012
2/11/2012