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08-22-1994 Council Packet
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08-22-1994 Council Packet
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T-is quantification of Pentel's ability to connunicate v <br />tbcrouqbly r.ischaracterited by tbe r.aycr at his deposition, where <br />he stated that Pentei was able to corjr.unicatc worldwide 60 to 70 <br />percent or the tine, but that she wanted to have reliable worldwide <br />connunications 100 percent of the tine. One city councilner.ber <br />understood Fentel's statenents regarding her transnission success, <br />but others der.onstrated a fuzty understanding, at best, of Fentel's <br />situation. Although what constitutes "successful" anateur <br />connunications is difficult to quantify, the evidence in the record <br />Goes not justify a finding by the city that Fentel's old antenna <br />enaoled her "successfully" to engage in anateur connunications, and <br />the city was unreasonable if it so found. On the record before us, <br />the city's first three concerns lack factual support. <br />The city's last reason for denying Fentel's application, that <br />the antenna tower would be unsightly, rests on subjective <br />considerations and is difficult for a reviewing court to evaluate. <br />This reason is undercut, however, by the city's willingness to <br />allow Pentei to keep her present roof-r.ounted antenna, which <br />reac.hes a .heig.ht only slightly below that cf .her proposed antenna <br />tower, and by the city's allowance of a sinilar antenna tower <br />nearby. We acknowledge the possible aesthetic difference between <br />nere is noan^ antenna tower and a roof-nounted ante.nna, tut <br />incication in the record that the city attenpted to find any <br />ccr.prcr.ise that would have acco.rncdated Fentel's a.tateur <br />cc.rcr.unications. <br />T.he city's decision to grant a variance that allows Fentel to <br />continue using a wholly inadequate antenna does not constitute an <br />aCw0...rodation in any practical sense. I.n addition, because t.he <br />did not reasonably acconunodate Fentel, it obviously did .not <br />use ^.he least restrictive mea.ns available to neet its legitir.ate <br />toning purposes. We therefore hold that the city's toning <br />ordinance as applied in this case is preenpted by P.R3-1.
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