**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of

)

Petition of the Greater New York Corporation ) Application File No.

of the Seventh-day Adventists ) 89-SAT-DRZ-98

Seeking a Declaratory Ruling that )

a Zoning Ordinance of the City of Yonkers, )

New York is Preempted )

Pursuant to § 25.104 of Commission Rules )

**MEMORANDUM OPINION AND ORDER**

**Adopted: March 22, 2000 Released: March 23, 2000**

By the Chief, International Bureau:

**I. Introduction**

1\. By this Memorandum Opinion and Order, we grant the petition filed by
the Greater New York Corporation of Seventh-day Adventists
(\"Petitioner\"). The Petition states that the City of Yonkers ("City")
and the Yonkers Zoning Board of Appeals ("Zoning Appeals Board") have
refused to approve Petitioner's request for a building permit to locate
a satellite earth station on its property. We find that the application
of the zoning ordinances by the Zoning Appeals Board both "materially
limits ... reception of satellite earth station antennas" and "imposes
more than minimal costs on users of such antennas."[^1] We also find
that the City has failed to demonstrate that the ordinance in question
is reasonable because it fails to state a clearly defined health,
safety, or aesthetic objective that is stated in the text of the
regulation itself. We preempt Section 43.80(P) of the City of Yonkers
zoning code to the extent that it applies to satellite earth station
antennas.[^2]

**II. Background**

2\. The Petitioner seeks a Declaratory Ruling that a zoning ordinance of
the City is preempted by Section 25.104 of the Commission\'s rules. The
City's ordinance provides that any "radio, radio-telephone or television
tower or mast" is a "special exception use" if it is located within
certain zones specified in a chart. That chart was referenced in the
ordinance and specified what zoning restrictions on satellite earth
stations applied in different neighborhoods in the City.[^3] The City
ruled that this provision applied to Petitioner's satellite earth
station antenna, which was 7.5 feet in diameter. Under its ordinance,
proposed uses of land that are classified as "special exception" are not
approved through the City's normal zoning procedures but must be decided
by the Zoning Appeals Board after paying the required \$1,600 in
fees.[^4] The Petitioner contends that, under the City's land use
regulations, once a matter is in the hands of the Zoning Appeals Board,
that board is free to deny an application for a satellite earth station
antenna for any reason, and that in this case the reason appears to be
concerns regarding increased traffic and limited parking.[^5] The
Petitioner requested and received a hearing before the Zoning Appeals
Board,[^6] which unanimously voted to deny the Petitioner\'s request for
a special exception and required removal of the satellite earth station
antenna.[^7]

3.  The City failed to respond to the Church\'s Petition and offers no
    defense of its ordinance,[^8] despite being duly served by
    Petitioner in accordance with Commission procedures.[^9] As a
    result, the record does not contain any direct rebuttal by the City
    to the Petitioner\'s arguments. Given the City\'s failure to
    respond, the facts as represented by the Petitioner are
    uncontested.[^10]

# III. Discussion

4.  The Petitioner contends that the City\'s ordinance violates Section
    25.104 of the Commission\'s rules,[^11] because it materially limits
    reception of satellite earth station antennas, does not contain a
    clearly defined health, safety or aesthetic objective or
    standard,[^12]and imposes more than minimal cost on users of such
    antennas.[^13] The provisions of Section 25.104(a) of the
    Commission's rules, which apply to satellite earth station antennas
    with a diameter greater than two meters, state that any local zoning
    regulation that materially limits transmission or reception by
    satellite earth station antennas, or imposes more than minimal costs
    on users of such antennas "is preempted unless the promulgating
    authority can demonstrate that such regulation is reasonable."[^14]
    For the purposes of this rule, "reasonable" means that the local
    regulation:

\(1\) has a clearly defined health, safety, or aesthetic objective that
is stated in the text of the regulation itself; and

> \(2\) furthers the stated health, safety, or aesthetic objective
> without unnecessarily burdening the federal interests in ensuring
> access to satellite services and in promoting fair and effective
> competition among competing communications service providers.[^15]

The burden to prove reasonableness is on the promulgating
authority.[^16]

5.  We conclude that Yonkers' zoning ordinance "materially limits"
    reception by satellite earth stations. In the present case, the
    City, through its Zoning Appeals Board, denied Petitioner's request
    for a permit and, further, required Petitioner to remove the
    satellite earth station antenna.

6.  The Commission's rule also provides for preemption if a local zoning
    ordinance "imposes more than minimal costs on users of \[satellite
    earth station\] antennas."[^17] In the present case, the total cost
    of Petitioner's satellite earth station antenna and associated
    equipment was \$3,000. Petitioner had to pay \$1,600 in fees and
    sign rental costs in order to obtain a hearing before the Zoning
    Appeals Board. In adopting this rule, the Commission stated that
    "any nonfederal costs including those relating to permitting or
    installation requirements must be very low or must be justified by
    the governmental entity imposing them."[^18] In the present case,
    the City's zoning fees added more than fifty percent to the
    applicant's cost of obtaining satellite reception. A city would have
    to make a strong showing to demonstrate that such high fees were
    justified. In the present case, the City made no arguments in
    response to the Petition. It consequently failed to meet its burden
    of proving that a permit was necessary and that the fees it imposed
    were reasonable.

7.  Next, we must consider whether the material interference and cost
    burdens imposed by the City's ordinance are justified under Section
    25.104(a)(1) and (2). Under subsection (1), the City must show that
    the regulation has a clearly defined health, safety or aesthetic
    objective stated in the text of the regulation itself. In the
    present case, the City's zoning ordinance merely classifies a
    "\[r\]adio, radio-telephone or television tower or mast" as a
    "special exception use" in specified zones. It does not state any
    "clearly defined health, safety or aesthetic objective" in the text
    of the regulation.

8.  Had the City responded to the petition, it might have been able to
    justify the reasonableness of the zoning restriction at issue by
    pointing to some statement of purpose not in the text of the
    regulation. Evidence regarding the City's position is contained in
    documents provided by the petitioner: specifically, a copy of
    section 43.80 (P) of theYonker's zoning ordinances and a transcript
    of the final hearing during which the Zoning Appeals Board voted to
    deny petitioner's request for a special exception. Although these
    documents give an indication of the Zoning Appeals Board's reasoning
    in denying petitioner's request for a variance, they cannot
    adequately substitute for a filing by the City in this matter.
    Therefore, in light of the record before us, we conclude that the
    City has not met its burden of proof. The regulatory intent and
    purpose of the specific ordinance in question were never explicitly
    stated and the City has entered nothing into the record that
    \"clearly defines\" its objective.[^19] We find that the ordinance
    in question is vague and overly broad. It fails to specify whether
    satellite earth station antennas are subject to the extra regulatory
    burden of the special exception process on health, safety or
    aesthetic grounds.

9.  Even if the record of the Zoning Appeals Board hearing could be
    considered as the City's justification of its ordinance, it would be
    inadequate to do so. One of the board members[^20] expressed concern
    that many people would attend the programs at Petitioner's church
    and this would have an adverse impact on parking in a neighborhood
    that had a significant proportion of residences.[^21] He further
    added that \"no material evidence \[had been\] submitted to date as
    to the entitlement of the requested use variance,\" thereby stating
    another ground on which Petitioner's request could be rejected. He
    also mentioned that the antenna could be seen from nearby houses and
    that Petitioner was unwilling to move its antenna to another place
    on its premises, thereby indicating that aesthetic concerns may have
    influenced the board's decision. The Zoning Appeals Board members
    then denied, by 6-0 vote, the Church\'s request for a variance but
    did not cite any ordinance as the basis for their decision.[^22]
    Even if the record of Petitioner's special exception hearing could
    satisfy the requirement that the City state a purpose for its
    restrictions on satellite earth station antenna, the record of that
    hearing contains nothing that clearly defines the objective of the
    ordinance. With regard to the impact of the satellite earth station
    antenna on traffic, the board does not clearly state whether it is
    primarily concerned about the impact of congestion on the
    residential neighborhood or with concerns about public safety.
    Because it has not clearly defined its goals for this ordinance
    restricting installation of satellite earth station antennas, the
    City has not met its burden of showing that the restrictions are
    reasonable. Not only is the purpose of the restriction not clearly
    stated in the text of the ordinance, nothing in the record indicates
    that the City's action in denying the permit was based on a clearly
    defined health, safety or aesthetic objective. We therefore conclude
    that the City of Yonker's Zoning Ordinance 43-80(P) is inconsistent
    with Section 25.104 of the Commission's rules because it does not
    state a clearly defined health, safety or aesthetic objective. [^23]
    Consequently, we grant the petition before us and find that Section
    43-80 P of the City of Yonkers Zoning Ordinance is preempted by
    Section 25.104 (a) of the Commission Rules to the extent that it
    applies to satellite earth station antennas.

# V. ORDERING CLAUSE

10. Accordingly, IT IS ORDERED, pursuant to authority delegated to the
    Chief, International Bureau (47 C.F.R. § 0.261 (a) (15)) and Section
    25.104 of the Commission\'s rules, 47 C.F.R. § 25.104, that the
    Petition for Declaratory Relief (89-SAT-DRZ-98) IS GRANTED.

FEDERAL COMMUNICATIONS COMMISSION

Donald Abelson

Chief, International Bureau

[^1]: ^?^ Petition at 3.

[^2]: ^?^ 47 C.F.R. § 25.104.

[^3]:   ^?^ Petition, Exhibit 1 at 1.

[^4]: ^?^ Petition at 6. Petitioner states that there is a \$1,500 fee
    for applying for a special exception and a mandatory \$100 sign
    rental. Petitioner also states that the total cost of its satellite
    antenna and all related equipment was \$3,000.

[^5]: ^?^ Petition at 4-5.

[^6]:     ^?^ Petition at 2.

[^7]:    ^?^ Petition at 2-3. The Church complied with the City\'s order
    to remove the satellite earth station antenna on December 22, 1997.
    The church was permitted to maintain, until September 1, 1998, the
    seven foot mounting pole on which the antenna sits in expectation
    that an FCC decision on this petition might be rendered before that
    date. *See* the letter faxed to the FCC by Kevin J. Sullivan, Esq.
    on behalf of the Church, dated July 14, 1998.

[^8]: ^?^ On June 16, 1998, in response to the Commission\'s May 29,
    1998 public notice of the Church\'s petition for a declaratory
    ruling, the City sent a letter signed by Ronald Cabriele, Deputy
    Commissioner for the Department of Housing and Buildings, City of
    Yonkers. The letter stated, in part, that \"\[Petitioner\'\]s
    application\... for a Special Use Exception Variance to legalize
    \[its\] satellite dish was denied by the \[City\'s\] Zoning Board of
    Appeals in \[their\] decision rendered November 18, 1997.\" The City
    did not, however, defend the validity of its ordinance.

[^9]:     ^?^ *See* letter from Kevin J. Sullivan, counsel for
    Petitioner, to Secretary, FCC (Feb. 2, 1998), stating that a copy of
    the Petition, the Public Notice (Report No. SPB-41) and the
    Commission\'s order, Preemption of Local Zoning Regulation of
    Satellite Earth Stations, *Report and Order and Further Notice of
    Proposed Rulemaking,* 11 FCC Rcd 5809 (1996) ("*Earth Station
    Preemption Order*") have been served on the Commissioner of Housing
    and Buildings of the City.

[^10]:    ^?^ *See* Petition of Willie and Chun Ok Brown Seeking a
    Declaratory Ruling that a Zoning Ordinance of Burlington Township,
    NJ is Preempted Pursuant to Section 25.104 of Commission's Rules,
    *Report and Order*, 12 FCC Rcd. 9626, 9628 (1997) ("*Brown Order*").

[^11]: ^?^ 47 C.F.R. § 25.104.

[^12]:     ^?^ Petition at 5.

[^13]:     ^?^ *Id.* at 3.

[^14]:     ^?^ 47 C.F.R. § 25.104 (a).

[^15]:     ^?^ *Id.* at § 25.104 (a)(1) and (2).

[^16]: ^?^ *Id.* at § 25.104(a). *See also, Brown Order,* 12 FCC Rcd at
    9630.

[^17]: ^?^ *Id.*

[^18]: ^?^ *Earth Station Preemption Order*, 11 FCC Rcd at ¶ 41.

[^19]: ^?^ The *Brown Order* stated that "the regulatory intent of the
    specific ordinance in question was never explicitly stated and the
    Township has entered nothing into the record that 'clearly defines'
    its objective." *Brown Order,* 12 FCC Rcd 9626, at ¶ 17.

[^20]: ^?^ Petition at 5.

[^21]:     ^?^ *Id*. at 2-3.

[^22]:     ^?^ *Id.* at 4.

[^23]: ^?^ *See* Petition at 2 and Exhibit D at 1-2. The City also cited
    Petitioner for failure to obtain a building permit, failure to
    obtain a Certificate of Occupancy and for changing the nature of its
    occupancy without required permits. We do not rule on whether these
    ordinances materially limit reception from satellite earth stations
    and we therefore do not preempt them.