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                                                           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."  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. 

                         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.  
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.  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. 
The Petitioner requested and received a hearing before the Zoning Appeals Board, which
unanimously voted to deny the Petitioner's request for a special exception and required removal of
the satellite earth station antenna. 

3.     The City failed to respond to the Church's Petition and offers no defense of its
ordinance, despite being duly served by Petitioner in accordance with Commission procedures. 
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. 

                        III. Discussion

4.     The Petitioner contends that the City's ordinance violates Section 25.104 of the
Commission's rules, because it materially limits reception of satellite earth station antennas, does
not contain a clearly defined health, safety or aesthetic objective or standard,and imposes more
than minimal cost on users of such antennas.  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."  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.

The burden to prove reasonableness is on the promulgating authority. 

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."  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."  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.  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
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.  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.  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.   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