08-22-1994 Council Packet - Laserfiche WebLink

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This quantification of Pentcl's ability to comnunicato was thoroughly nischaractcrized by the mayor at his deposition, where he stated that Pentel was able to communicate worldwide 60 to 70 percent of the time, but that she wanted to have reliable worldwide communications 100 percent of the time. One city councilmember understood Pentel's statements regarding her transmission success, but others demonstrated a fuzzy understanding, at best, of Pentel^s situation. Although what constitutes "successful" amateur communications is difficult to quantify, the evidence in the record does not justify a finding by the city that Pentel's old antenna enabled her "successfully" to engage in amateur communications, and the city was unreasonable if it so found. On the record before us, the city's first three concerns lack factual support. The city's last reason for denying Pentel's application, that the antenna tower would be unsightly, rests on subjective considerations and is difficult for a reviewing court to evaluate. This reason is undercut, however, by the city's willingness to allow Pentel to keep her present roof-mounted antenna, which reaches a height only slightly below that of her proposed antenna tower, and by the city's allowance of a similar antenna tower nearby. We acknowledge the possible aesthetic difference between an antenna tower and a roof-mounted antenna, put there is no indication in the record that the city attempted to find any compromise that would have accommodated Pentel's amateur communications. The city's decision to grant a variance that allows Pentel to continue using a wholly inadequate antenna does not constitute an accommodation in any practical sense. In addition, because the city did not reasonably accommodate Pentel, it obviously did not use the least restrictive met available to meet its legitimate zoning purposes. We therefore hold that the city's zoning ordinance as applied in this case is preempted by PRB-1. -9-