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 and Loses (January 15, 2009 – September 10, 2010)

Tom sued Storey County in U.S. District Court for the District of Nevada.

Thomas S. Taormina v. Storey County

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 Storey County

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 [Storey County opposes Tom’s Motion for Declaratory Judgment]

doc018.pdf Reply Brief with Memorandum of Points and Authorities in Support of Motion for

Declaratory Judgment [Tom’s response to Storey County’s Response to Tom’s Motion]

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 Storey County.]

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 Storey County.

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

[Storey County says Tom’s legal argument is full of beans.]

doc023.pdf Reply Memorandum in Support of Plaintiff’s Motion to Vacate [Tom replies to Storey County’s Opposition]

doc023-1.pdf Exhibits

doc023-2.pdf Exhibits

doc024.pdf The Final Order

The following is my summary. Read the whole case.

Tom sued Storey County saying that, because of Federal Law, the County cannot require that he get a Special Use Permit to put up another tower.

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 Storey County regulations violate Federal Law, so if he applies for a Special Use Permit, and is denied, he can sue the County again.

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.

(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 (January 2011)

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., Reno, NV

Fred Hopegarten, Esq., Lincon, MA

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, 2610 Cartwright Road, Virginia City Highlands, Nevada.

2011-010 SPECIAL USE PERMIT: By Taormina, Thomas (Highland Ranches )

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 County Code. Project is located at 370 Panamint Road (APN 003-431-18), Highland Ranches.

For the complete Agenda click here.

A walking tour of the Taormina estate is scheduled before the meeting. Meet at the Fire Station at 5:00pm.

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. Storey County Planning Commission Staff Report (February 18, 2011)

The Staff Report should be considered a Draft that is subject to revision up until the Planning Commission Meeting.

Staff Report (2/18/2011)

F. My Comments to the Planning Commission Regarding Tom’s Application for a Special Use Permit (February 22, 2011)

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.

HTML - Has active links

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.

HTML - Has active links

G. Tom’s Statement on the Yahoo Group – February 23, 2011

(I made it into an HTML file)

Tom’s Statement

H. March 2, 2011 Storey County Planning Commission Staff Revised List of Recommended Conditions of Approval

Staff Revised List of Recommended Conditions of Approval

I. March 3, 2011 Planning Commission Meeting

The Planning Commission met on Thursday, March 3, 2011 at the Virginia City Highlands Fire Station.

Lydia had to recuse herself because she had been on the 10-acre Association Board when Tom sued them. (He lost and was assessed several thousand dollars by the Court which he still hasn't paid.)

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 County Code. His motion also died for lack of a Second.

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 County Commissioners to accept or reject the Planning Commission's recommendation.

J. March 2011 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. May 3, 2011 The Storey County Commissioners meeting

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 County Commissioners, but not in a public meeting. Or, he was willing to negotiate with District Attorney Maddox instead. He offered one compromise right off the bat, which was to reduce the height of the proposed new tower(s) to 175’ instead of 195’. I think the compromise included putting up only a single additional tower instead of two towers. (It was at the end of the long meeting and I am not sure he said only one tower and not two.)

[Nevada’s Open Meeting Law prohibits a public body such as the County Commissioners from meeting in secret except in rare instances such as personnel matters. I guess they do things differently in Massachusetts, where Fred is from.]

L. May 2011 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 Japan

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.)

jm_scc04.pdf

Tom received a fair amount of favorable publicity regarding his preparations for providing emergency communications with Japan to help with the current disaster. In one section I quoted from an ARRL article which ended with:

Taormina said that more than a dozen Japanese hams were contacted, all of whom were outside the earthquake area. “We are now on standby, awaiting permission of the Japanese government to begin formal third party communications relays,” he said.

I contacted a Diplomatic Assistant at the Embassy of Japan in Washington DC to find out if, indeed, the Government of Japan had given permission for third party communications. It was Golden Week in Japan so everyone was on holiday, which is why the answer was delayed. (For Wikipedia’s explanation for Golden Week go to http://en.wikipedia.org/wiki/Golden_Week_%28Japan%29.)

If you want to know if the Government of Japan gave permission for third party communications read the letter.

jm_scc05.pdf

Tom responds to my comments about his claim to being a former NASA Engineer, and I respond to his response.

jm_scc06.pdf

M. June 7, 2011 The Storey County Commissioners meeting

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. June 2011 Storey County Timeline

The County made a timeline of the events in this issue.

Here is the County’s timeline (June 1, 2011 from PDF Properties):

Click here for PDF

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 [Oregon]

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

Exhibit K

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.

Storey County is more than willing to work with your client in achieving his goals for his hobby, but it will be necessary to approach this matter within the law. We would be amenable to a conference between County building officials, myself, you and your client (following the proper application for a special use permit) if he is willing to work through the proper channels to achieve his ends. Further, it will be necessary to engage the Planning Commission in the discussion, with the appropriate public hearings. It will also be necessary to evaluate Mr. Taormina's need for the number of antennae already upon his property, another matter which could have been addressed previously had he made the proper applications for such placement over the years.

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 Nevada is a 9th Circuit state, I must say that the Howard v. Burlingame decisions are, at the least, both published and controlling.

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 County Code §17.62.020 is Limited and Does Not Apply.

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 Taormina's property must be addressed under the code.

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 Storey County. Mr. Taormina has not done so prior to erection of the existing structures on his property and now must suffer the consequences of his decisions so that he may make his property, and its structures, comply with the law.

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. June 2011 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

Click here for PDF

________________

Re: Items missing from staff timeline

Appears to be a duplicate of the above.

Click here for PDF

________________

Letter from Pat Whitten (County Manager) dated June 7, 2011 regarding Hopengarten Timeline. It also contains a discussion of a suggested alternative that had been discussed by the applicant and staff during the interim period between scheduled meetings.

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.

Click here for PDF

P. June 2011 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)

Click here for PDF

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.

Click here for PDF.

2. April 13, 2001 - Letter from Lydia Hammack, President of the HRPOA to Tom Taormina. The letter starts out:

The Board of Directors has received several more complaints regarding the Radio Towers on your property.

Click here for PDF.

3. May 4, 2003 - Order Granting Defendant Highland Ranches Property Owners Association Motion For Costs and Attorney’s Fees, Taormina vs. Storey County Building Department, Highland Ranches Property Owners Association, et al., First Judicial District Court of the State of Nevada, in and for the County of Storey, Case No. 19561.

Click here for PDF.

4. October 14, 2003 - Order Denying Motion to Stay Award of Costs and Attorney’s Fees, Taormina vs. Storey County Building Department, Highland Ranches Property Owners Association, et al., First Judicial District Court of the State of Nevada, in and for the County of Storey, Case No. 19561.

Click here for PDF.

Q. Tom Sues the County Again

September 9, 2011

Plaintiffs: Midge A Taormina and Thomas S Taormina

Defendant: Storey County, Nevada

Case Number: 3:2011cv00645

Filed: September 6, 2011

Court: Nevada District Court

Office: Reno 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. Storey County, Nevada and Does 1-10

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 County Commissioners of their municipal immunity (Page 23, lines 1-6):

(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 Storey County directly or indirect through building departments, planning commissions or other boards of governance. Accordingly, upon determining the true and accurate designation of said DOE DEFENDANTS, the Plaintiffs will amend to include specific allegations against specific defendants.

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.

[Taormina] 9/6/2011

doc001.pdf Complaint

doc001-1.pdf Civil Cover Sheet

[Taormina] 9/7/2011

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

[Taormina] 9/7/2011

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

[Taormina] 9/7/2011

doc004.pdf Notice of Related Case

[Taormina] 9/7/2011

doc005.pdf Certificate of Interested Parties

[Taormina] 9/13/2011, modified 9/14/2011

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.

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

My Comments & Things #2

A. Building Permit 8354 dated 6/27/2011

See Taormina II Exhibit D

1. It says:

Work Description: Erection of two Ham Radio Towers

It does not give the height of the two Ham Radio Towers.

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 County of Storey. Inspection MUST be called for within 180 days of issuance of permit or permit is void. Permit may be renewed for 50% of the original “Permit Fee”

{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. Storey County Compliance Inspection Report

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 Storey County now is of the opinion that a Special use Permit is required for the construction of towers over 45’ in height, that towers are defined as structures in Storey County Code and therefore are subject to set-back requirements. A Special Use Permit has not been applied for at this time. Owner has been advised that continued construction of tower components is at own risk, and that the erection of towers over 45’ in height with anchors encroaching set-backs may not be approved by Storey County Officials.

JM 9/22/2011

My Comments & Things #3

In Tom’s Complaint he castigates the Planning Department, the Planning Commission, and the County Commissioners (among others) for not negotiating with him.

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, County Manager and County District Attorney, the Taorminas pointed out again that there had never been any negotiations about the number or height of radio communications masts with the County Commission or with any agent for the Commission.

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 County Commission attempt to negotiate the number or height of radio communications masts with the Taorminas.

77. Through Staff, including the County Manager and the District Attorney, as well as at the meeting of June 6, and the hearing of June 7, the Taorminas pointed out that there had yet never been any negotiations with the County Commission on the subjects of the number and heights of radio communications masts.

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 County Commissioners had refused to negotiate with him, he means they refused to negotiate with him privately, out of public view.

Until Tom filed this second lawsuit, a public hearing was the only place where the County Commissioners could legally meet and negotiate with Tom.

And that is because of Nevada’s Open Meeting Law. (See NRS 241 et seeq CHAPTER 241 - MEETINGS OF STATE AND LOCAL AGENCIES at http://www.leg.state.nv.us/nrs/nrs-241.html)

The private meeting(s) that Tom wanted would have been a violation of Nevada's Open Meeting Law.

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 County Commissioners. Note that the Planning Commission does not make the decisions. They make recommendations that are passed on to the County Commission. That’s what they did. They did their job.

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 Storey County directly or indirect through building departments, planning commissions or other boards of governance. Accordingly, upon determining the true and accurate designation of said DOE DEFENDANTS, the Plaintiffs will amend to include specific allegations against specific defendants.

In the next section I believe I can show that he can’t do this.

JM 9/23/2011

My Comments & Things #4

In Tom’s Complaint he brings Nevada law into the case.

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 Nevada State employees and public officers (and others) as individuals (with a few exceptions which do not apply here.) This includes employees and public officers of Nevada’s political subdivisions (such as counties).

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.

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 County Ordinance 17.62.010:

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 County Commissioners exercised due care in rejecting his application.

Then the County Commissioners noted that Tom had put up several towers without permits and ordered them taken down. The County had let him get away with ignoring the County Code for far too long so they exercised due care in ordering him to correct the blight he has inflicted on the community.

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

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 County Commission, as Exhibit F to the Planning Department's staff reports. Exhibit J at 20.

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.)

Nevada’s version says the same thing (NRS 278.02085):

NRS 278.02085 Amateur radio: Limitations on restrictions on amateur service communications; limitations on regulation of station antenna structures; exception.

(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.

(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 Hawaii (the KH6 call area). Transmitter power was limited to 100 Watts. (Tom’s equipment is capable of transmitting with the full legal limit of 1500 Watts on SSB.) I am assuming that the rules in 2010 were the same as the rules in 2011, which I obtained from the National Contest Journal Web site at http://www.ncjweb.com/naqprules.pdf. For a mirror copy click here. (If the rules were to materially change from year to year it would be difficult to compare the results for different years.)

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 North America. It is not just the United States, Canada, Mexico, Puerto Rico, the Dominican Republic, Haiti, Cuba, and Greenland.)

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

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, 370 Panamint Road, Virginia City Highland Ranches, Storey County, Nevada.

2. Thomas S. Taormina, 370 Panamint Road, Virginia City Highland Ranches, Storey County, Nevada.

3. Storey County, Nevada.

4. Storey County Commissioners Office.

5. Storey County Planning Department.

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 6^th day of September, 2011.

McMAHON LAW OFFICES, LTD.

Brian McMahon, Esq.

Fred Hopengarten, pro hac vice

Attorneys for Plaintiff,

THOMAS AND MIDGE TAORMINA

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.

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.)

Cornell University Law School has an instructive commentary on FRCP Rule 7.1: http://www.law.cornell.edu/rules/frcp/ACRule7_1.htm

It was unnecessary for Tom to list himself and his wife (the Plaintiffs) or Storey County (the Defendants). Listing Storey County Commissioners Office, Storey County Planning Department, and Storey County Building Department was gratuitous (they are part of Storey County). Was this part of Tom’s attempt to intimidate the County?

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 Storey County, Nevada. In the suit, K5RC seeks a declaration that portions of the county’s zoning code are preempted by state and federal law, and requests that the court order the county to withdraw a stop work order and issue the requested building permits. The trial court recently denied Taormina’s motion for summary judgment, noting that it could not determine whether the county had applied the ordinances in violation of PRB-1 until the radio amateur applied for a special use permit. The case is pending in the trial court. This committee will consider any request for funding which may be forthcoming.

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 “Taormina” into the Search box.

In addition to ARRL Document #19 there is another document that might be relevant:

AGENDA, ARRL EXECUTIVE COMMITTEE

St. Louis

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. Storey County, Nevada

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

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 Texas (The Texas DX Society, Houston TX) wrote about it in their September 2008 issue of The Bullsheet starting at the bottom of page 3:

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

Mirror Copy.

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 Texas) I am proud to announce that I have been offered, and have accepted, a commission in the Virginia City Highlands Navy with the rank of Admiral.

My first assignment is to find some water.

JM, ADM (VCHN), 9/27/2011

Taormina 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 United States, United States agencies, and officers and employees of the United States get 60 days to answer Complaints.)

The clock is running.

Speaking of deadlines, the County Commissioners made their decision at the June 7 meeting. However, it appears that decisions made at a County Commissioners meeting do not go into effect until the minutes are approved.

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 County Commissioners decision is 90 days from July 5, which is Monday, October 3, 2011. (Presumably, he has until 12:01 AM on October 4.)

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

[Storey County]

doc009.pdf 10/27/2011 Answer to Complaint

I have converted it to html: doc009.htm

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 United States and confirmed by the U.S. Senate.

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 United States, and the Administrative Office of the U.S. Courts play no role in the nomination and confirmation process.

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 United States district court for a term of eight years. He or she is appointed by the life-tenured federal judges of a district court, District Judges, who supervise the activities of the Magistrate Judges by assigning civil cases for jury or non-jury trial upon consent of the parties and for pre-trial matters. Similarly criminal cases are assigned to Magistrate Judges on the consent of the parties, except for the trial of felony cases.

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, STOREY COUNTY, NEVADA, certifies that there are no known interested parties other than those participating in the case.

[Taormina] 11/16/2011

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:

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 Rule IA 10-2 says:

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 Nevada;

(3) The attorney is not regularly employed in the State of Nevada;

(4) The attorney is a member in good standing and eligible to practice before the bar of any jurisdiction of the United States; and,

(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 Nevada and all other standards of professional conduct required of members of the Bar of this Court.

(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 LR IA 10-2” or “will comply with LR IA 10-2 within ___ days.” Until permission is granted, the Clerk shall not issue summons or other writ.

(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

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 Nevada, as in the State of Nevada. This case is being heard in a U.S District Court, and is using the Court’s Electronic Filing System (CM/ECF).

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:

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.

3715 Lakeside Drive, Suite A

Reno, NV 89509-5239

Phone:775-348-2701

Fax:775-348-2702

E-Mail:brian@mcmahonlaw.org

Fred Hopengarten, Esq.

Six Willarch Road

Lincoln, MA 01773

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:

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.

(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

(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:

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 Bruce R. Thompson Federal Building & U.S. Courthouse, U.S. District Court, District of Nevada - Reno, 400 S. Virginia Street, Reno Nevada.

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.

[Taormina] 1/18/2012

doc014.pdf JOINT DISCOVERY PLAN AND SCHEDULING ORDER PURSUANT TO FRCP RULE 26(F) AND LOCAL RULE 26-1(e)

and

[Taormina] 1/18/2012

doc15.pdf JOINT CASE MANAGEMENT REPORT

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.

Taormina and Storey County held their scheduling conference “On or about December 28/29, 2011.” Note that the Minutes of the Court (doc013.pdf) was issued December 27, 2011. It appears that the Minutes of the Court got their attention.

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 LR IA 10-2, so that Fred Hopengarten, Esq., may be permitted to continue representation begun in the prior litigation, and again be admitted pro hac vice, under the supervision of Brian M. McMahon, Esq., of Reno. This motion was filed November 16, 2011.

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 County Commissioners have been held, and this controversy has previously come before this Court. Notwithstanding these facts, since Plaintiffs’ initial claim in 2008 of rights under 47 CFR § 97.15(b) (2006) and NRS 278.02085, and despite the fact that the Plaintiffs have repeatedly pointed out the county’s legal obligations under federal law, including the obligations to negotiate, as well as to apply the minimum practicable regulation with regard to the amateur radio masts requested, no negotiation has ever been authorized by the County Commissioners. The Commission’s denial of the special use permit results in a denial of the protected amateur radio communications to be engaged in by Plaintiffs.

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:

01/19/2012

NOTICE TO COUNSEL PURSUANT TO LOCAL RULE IA 10−2. Counsel Fred Hopengarten, Esq. to comply with completion and electronic filing of the Designation of Local Counsel and Verified Petition. For your convenience, click on the following link to obtain the form from the Court's website − www.nvd.uscourts.gov/Forms.aspx . Counsel is also required to register for the Court's Case Management and Electronic Case Filing (CM/ECF) system and the electronic service of pleadings. Please visit the Court's website www.nvd.uscourts.gov to register Attorney(s). Verified Petition due by 3/4/2012.(no image attached) (BLG) Modified on 1/19/2012 rescinded and stricken see (#17). (BLG). (Entered: 01/19/2012)

01/19/2012

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 LR IA 10−2, Permitting Counsel to Continue Representation as to Fred Hopengarten, Esq. (no image attached)(BLG) Modified on 1/19/2012 corrected typo. (BLG). (Entered: 01/19/2012)

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 .

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 Storey County citizens are affected by the issue of Tom’s Towers and have exercised their right to make their concerns and opinions known to the County (Planning Department, Planning Commission, County Commissioners, etc.)

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 County Commissioners. I think that the closer you live to Tom’s place the more weight your opinion should have.

If you don’t live in Storey County your opinion should have no weight at all because you don’t vote here. If the County Commissioners give in to Tom, many residents will be pissed off, and in the next election for County Commissioners they will vote for someone else. They might not even wait for the next election. They could start a Recall Drive. That’s the other meaning of “political.”

Pissed off voters could conceivably sue the County for not enforcing the Ordinances and Codes.

That’s if the County Commissioners negotiate and give Tom too much.

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).

My Comments & Things #11

This is my take on the case.

1. In Taormina 1, Tom made a mistake. He argued that Federal Law (PRB-1 as codified in 47 CFR § 97.15 (b) totally pre-empted the County from regulating his ham activities, especially the height of his towers. Tom was wrong. That is why he lost. (He also argued that, since the FCC was charged with acting in the public interest, and since the FCC had granted Tom a ham license, Tom was acting in the public interest.) For PRB-1 (1985) click here.

2. The Court (with a different judge than in the current case) made a mistake. The Court said that Tom had a remedy under County Ordnance 17.62.010 which states:

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 County Ordinance 17.62.010. Click here for the Letter to Osborne.

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:

[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.

February 26, 2012

[Taormina] 2/22/2012

doc020.pdf REPLY IN SUPPORT OF MOTION TO WAIVE LR IA 10-2, PERMITTING COUNSEL TO CONTINUE REPRESENTATION AND NOTICE OF NON-OPPOSITION

doc020-1.pdf 2/22/2012

Exhibit 1 - Verified Petition for Permission to Practice in this Case Only 7 Pages

By Attorney Not Admitted to the Bar of this Court and Designation

Of Local Counsel

------------------------

It seems odd for a party to reply to their own motion. Presumably this was Brian’s and Fred’s way of reminding the Judge that Fred’s Motion to Waive the Rules to allow him to appear pro hac vice is still pending. (At the January 30 hearing Magistrate Judge Cooke suggested to Fred that he send the Judge a letter.)

And, once again Tom’s attorneys have ignored Special Order 109: III. ELECTRONIC FILING, F. Form of Documents, 1. PDF Format which requires that:

They filed a pure-image PDF file which is not text-searchable.

I used OCR to convert Document 20 to html: doc020.htm

I have indicated the errors in the original document so you won’t think I made them. One of the errors was in the title:

IN THE UNITED STATES DISTRICT COURT

STATE OF NEVADA

It should be

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

Document 20-1 is Exhibit 1, and is from Taormina I. (I have not converted it to html.)

______________________

[Taormina] 2/22/2012

doc021.pdf EXPERT DISCLOSURE; FRCP RULE 26

This is a shocker so I am reproducing it here:

EXPERT DISCLOSURE; FRCP RULE 26

COME NOW Plaintiffs, by and through their attorneys, McMahon Law Offices, Ltd., and hereby discloses the following expert:

1. Thomas S. Taormina, c/o McMahon Law Offices, Ltd., 3715 Lakeside Drive, Suite A, Reno, Nevada 89509.

In an abundance of caution and the broadest interpretation of FRCP 26, Mr. Taormina is hereby designated as a witness who has specific information and knowledge relating to the difference and necessity of the radio antennae towers as well as his professional backgrounds. Taormina is a veteran HAM amateur radio operator and will explain frequency and tower relations.

It is anticipated that Mr. Taormina will form opinions surrounding industry standards, compliance with industry standards and design of towers as utilized in amateur radio and emergency applications.

Further, whether by lay opinion, percipient or otherwise, it is anticipated that MR. Taormina will form opinions regarding the designing and building of all radio antennae and the necessity of each tower.

2. Plaintiffs reserve the right to call as a witness any expert designated by any other party.

Dated: January 18, 2012.

McMAHON LAW OFFICES, LTD.

FRED HOPENGARTEN, Esq.

//s// Brian M. McMahon

By ________________________________

Brian M. McMahon

Attorneys for Plaintiffs

Thomas S. Taormina and

Midge A. Taormina

(Note that although it is dated January 18, 2012 it was not filed until February 22, 2012. If it had been filed January 18 it might have been discussed during the January 30 hearing.)

Unless there is another (different) Tom S. Taormina who lives at McMahon Law Offices, Ltd., 3715 Lakeside Drive, Suite A, Reno, Nevada 89509, Tom’s attorneys are proposing to call Tom as an expert witness in his own case.

Previously, I listed the rules that apply to cases in U.S. District Court for the District of Nevada:

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

Let’s add another one:

Federal Rules of Evidence (2012): http://federalevidence.com/rules-of-evidence

(For a local copy in PDF format click here.)

Here is what the Federal Rules of Evidence (FRE) says about Expert Witnesses:

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

On its face it does not bar a party in a case from acting as his own Expert Witness.

But look closer:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(In a trial there are questions of Law and there are questions of Fact. Questions of Law are always decided by the Judge. Questions of Facts are decided by the Jury, if there is one. You do not have to have a Jury trial. You can have the Judge also decide questions of Fact. In this case Tom has not demanded a Jury trial so the Judge will decide the facts.)

Even then, FRE does not appear to bar Tom from acting as his own expert witness.

But, implicit in this (so implicit that apparently it was not felt necessary to explicitly state it) is that an Expert Witness is supposed to be objective.

Of course, you don’t really want a truly objective Expert Witness to testify for you. Their testimony might not support your case, so you shop around for an Expert Witness whose testimony will support your case. If you followed the O.J. Simpson case around 1995 you have seen how that works. For those of you who were too young (or had better things to do) in 1995 see this Wikipedia Entry: http://en.wikipedia.org/wiki/O._J._Simpson_murder_case

Here is some evidence for the requirement that Expert Witnesses be objective.

There is an agency called the Federal Judicial Center. This is who they are and what they do:

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal judicial system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial

Conference of the United States.

By statute, the Chief Justice of the United States chairs the Center’s Board, which also includes the

director of the Administrative Office of the U.S. Courts and seven judges elected by the Judicial Conference. The Director’s Office is responsible for the Center’s overall management and its relations with other organizations. Its Systems Innovation & Development Office provides technical support for

Center education and research. Communications Policy & Design edits, produces, and distributes all

Center print and electronic publications, operates the Federal Judicial Television Network, and through

the Information Services Office maintains a specialized library collection of materials on judicial

administration.

The Judicial Education Division develops and administers education programs and services for

judges, career court attorneys, and federal defender office personnel. These include orientation seminars, continuing education programs, and special-focus workshops. The Interjudicial Affairs Office provides information about judicial improvement to judges and others of foreign countries, and

identifies international legal developments of importance to personnel of the federal courts.

The Court Education Division develops and administers education and training programs and

services for nonjudicial court personnel, such as those in clerks’ offices and probation and pretrial

services offices, and management training programs for court teams of judges and managers.

The Research Division undertakes empirical and exploratory research on federal judicial processes,

court management, and sentencing and its consequences, often at the request of the Judicial

Conference and its committees, the courts themselves, or other groups in the federal system. The

Federal Judicial History Office develops programs relating to the history of the judicial branch and

assists courts with their own judicial history programs.

They commissioned a study in 2000 called Expert Testimony in Federal Civil Trials, A Preliminary Analysis.

This is from page 5:

Problems with Expert Testimony

The final section of the survey sought information from respondents about the frequency and nature of problems encountered with expert testimony across all civil cases in which they had some involvement (i.e., not just in the reported case). We provided respondents with a list of potential problems, and for each problem, asked them to rate its frequency on a scale of 1 (very infrequent) to 5 (very frequent). We then calculated mean responses for each problem and derived ranks to determine the relative reported frequency of each problem.

Table 2 shows the judges’ and attorneys’ ratings of problem frequency. Interestingly, when compared to results from a 1991 judges’ survey that asked an identical question, the judge rankings have changed very little over time. The most frequent problem cited by judges in both surveys was experts who “abandon objectivity and become advocates for the side that hired them.” In the current survey, the mean reported frequency for this problem was 3.69, indicating a problem that is quite frequent. Only one other problem—“excessive expense of party-hired experts”—received a mean rating above 3 (3.05). Other problems rated above the midpoint of the 5-point scale were “expert testimony appears to be of questionable validity or reliability” (2.86); “conflict among experts that defies reasoned assessment” (2.76); and “disparity in level of competence of opposing experts” (2.67). Attorneys’ ranking of frequency of problems follows the judges’ ranking quite closely. The only notable difference is that attorneys are somewhat more likely to perceive problems arising from experts who are poorly prepared to testify, an item that received the lowest rank among the judges.

{Emphasis added}

If judges cite as a problem “experts who “abandon objectivity and become advocates for the side that hired them” ” then it follows that experts are not supposed to be advocates for the side that hired them.

Since Tom is one of the Plaintiffs then it is safe to assume he will be an advocate for his own side.

For the complete version of Expert Testimony in Federal Civil Trials, A Preliminary Analysis go to: http://www.fjc.gov/public/pdf.nsf/lookup/exptesti.pdf/$file/exptesti.pdf

There is more evidence for the requirement that Expert Witnesses be objective in Manual for Complex Litigation, Fourth (2004, also from the Federal Judicial Center). Go to http://www.fjc.gov/public/pdf.nsf/lookup/mcl4.pdf/$file/mcl4.pdf

From pages 111-112 (PDF pages 131-132) {There are 819 pages}:

11.51 Court-Appointed Experts and Technical Advisors

Court-appointed experts serve a number of purposes: to advise the judge on technical issues, to provide the jury with background information to aid comprehension, or to offer a neutral opinion on disputed technical issues.[FN 261] The court has broad discretion to appoint such an expert, sua sponte or on request of the parties, but should consider whether there are adequate alternatives to such an appointment, such as directing the parties to clarify, simplify, and narrow the differences between them.[FN 262] Below are some of the problems and implications of appointing an expert:

• Cost. Court appointment of an expert increases the already high cost of complex litigation. Except in the rare cases where such funding is provided by statute, Federal Rule of Evidence 706(b) requires the parties to pay the expert’s compensation. The judge allocates this expense among the parties and determines the time of payment (usually periodic deposits in court during the litigation, subject to reapportionment at the outcome). Courts often decline to appoint an expert when one party is indigent to avoid the unfairness of requiring the other side to pay all of the expert’s compensation. The court has the authority, however, to order the nonindigent party to pay this expense in compelling circumstances (e.g., when the indigent party’s claim has merit that cannot viably be presented absent such expert assistance). The judge should provide for payment at the time of appointment to ensure that the expert will be compensated.[ FN 263]

• Neutrality of the expert. Truly neutral experts are difficult to find. Though they will have no commitment to any party, most experts do not come to the case free of experience and opinions that will predispose—or may be perceived to predispose—them in some fashion on disputed issues relevant to the case.

• Undue influence. Experts are typically appointed in cases that are extraordinarily difficult, and their independence relative to the parties’ experts may cause the jury to give their opinions undue weight. For this reason, the testimony of the expert must be limited to those issues specified by the court. Disclosure to the jury of the expert’s court-appointed status is discretionary. [FN 264]

• Delay. The testimony of a court-appointed expert may lengthen the trial, although there may be offsetting savings by narrowing the issues, reducing the scope of the controversy, and perhaps promoting settlement.

• Timing of the appointment. The need for an appointment will not always be clear early in the litigation.

By the time it becomes clear, the case may be at or about to go to trial, when introduction of a court-appointed expert would cause delay. Nevertheless, in appropriate cases, appointment of a neutral expert, even at an advanced stage of the proceedings, can be beneficial:

• court-appointed experts can have “a great tranquilizing effect” [FN 265] on the parties’ experts, reducing adversariness and potentially clarifying and narrowing disputed issues;

• they can help the court and jury comprehend the issues and the evidence;

• they can suggest acceptable procedures and ground rules for preserving and exchanging digital-format materials relevant to the case, and assist in settling disputes regarding electronic evidence; and

• they may facilitate settlement or at least stipulations.

Although the above section relates to court-appointed Expert Witnesses it shows that Expert Witnesses are supposed to be objective.

Tom says he has been an Expert Witness on many cases. See his Web site: http://www.taorminagroup.com/about.html

Shouldn’t he know the requirements to be an Expert Witness?

February 26, 2012

Tom wrote a very nice article about himself that appeared in Solid Copy, The International CWops Newsletter (February 2012 Issue #25, starting on page 14). You can read it here: www.cwops.org/pdf/scopy12feb.pdf

I have picked out the things that I found to be especially interesting. You should read his article, you may find other interesting things.

Before leaving for Tahiti, I took K5LZO to meet my “real” Elmer, Sam Harris, W1FZJ. WA2EVX (W4AAU) and I spent many weekends and summer days at the Rhododendron Swamp VHF Society (W1BU), where Sam not only taught us radio and antenna theory, but many life lessons that are still with me today. The first of the indelible lessons is: “If it stayed up last winter, it wasn’t big enough.” Second: “If you can’t see it from the highway, it isn’t high enough.”

At least one of Tom’s antennas was damaged a few months ago, so I guess it was big enough. And Tom’s towers are clearly visible from SR341 and Cartwright Rd. Indeed, they are visible from SR341 from at least half-a-mile down the highway.

By Tom’s own standards, his towers are already high enough.

For the last decade I have also been an expert witness in products liability and organizational negligence. My 11th book, Foreseeable Risk, was published in 2011. Next year I will publish #12 with my memoirs and experiences entitled It WAS Rocket Science®.

Tom is a published author. His book Foreseeable Risk is available on Amazon. It goes for $69.30 . See http://www.amazon.com/Foreseeable-Risk-Minimizing-Maximizing-Litigation/dp/1936360004/ref=sr_1_1?ie=UTF8&qid=1330317599&sr=8-1

Tom should have all sorts of money from his book. Why doesn’t he pay his mortgage?

In 1973 I joined the Texas DX Society and did a number of stints as President and editor of the Bullsheet, the newsletter that is still published monthly present day. During the TDXS years, we continually set records in Field Day and in ARRL DX from XE2FU. We sponsored the Great Armadillo Runs of 1983 through 1986. In the first three years, we activated every county in the W5 call area during the MARAC CW contest. In 1986, the Texas Sesquicentennial, we attempted to activate every county in the USA in two weekends. While we fell short of our goal, the Great Armadillo Runs became another part of my legacy in ham radio. Also, in 1986, W5FU, K7BV, K2TNO and I petitioned the Governor of Texas for a new county to commemorate the Sesquicentennial. We managed to invent Armadillo County, TX, which existed for 9 months of 1986 and is now a deleted county.

Holy crap. What if he does that here?

His property could become Taormina County. He could have his own ordinances. He could appoint himself the Chairman of the Taormina County Planning Commission and approve his own building permits.

After starting my consulting business, K5XI challenged me to build another mega-contest station in Iola, TX. Among other firsts, we had a 240’ tower for 20M with four stacked 6 element DX Engineering beams.

Is that Tom’s Master Plan? A 240’ tower?

E. This part is serious:

At Philco,I worked my way through the ranks from building the electronics that we installed in the Mission Control Center, including those green consoles you saw on TV and in the movie Apollo 13. Working next to me was a non-ham named Grady Ferguson. He would go on to become NA5R and now W5FU. Grady is the principal in the current-day Comstock Memorial Station, but that story is yet to be revealed.

1. Grady is the principal in the current-day Comstock Memorial Station.

2. Tom’s towers are for the Comstock Memorial Station.

3. Shouldn’t Grady be one of the Plaintiffs in the case?

4. Why is Grady’s participation yet to be revealed? What is Tom hiding?

February 28, 2012

{Taormina and Storey County] Joint Supplement to Status Conference

doc022.pdf

JOINT SUPPLEMENT TO STATUS CONFERENCE

The above entitled parties, by and through their respective counsel of record have met and conferred regarding the Court’s directive on a settlement conference. The parties are in agreement on a settlement conference. The parties are requesting access to this Court for settlement conference/mediation time. Both parties agree that the use of the Court, through this Magistrate would be most productive. STOREY COUNTY will be unavailable for the settlement conference due to staffing issues until April.

PRO HAC VICE

In accord with the Court’s direction at the last conference, counsel for TAORMINA has contacted the clerk and chambers for the Judge. To date, nothing has happened. As a result, TAORMINA on behalf of Pro Hac Vice applicant, Fred Hopengarten, Esq., has submitted a reply in support/notice of non-opposition to the Pro Hac Vice application seeking resolution of that issue.

The counsel’s signature hereto acknowledges their agreement with the joint status conference statement.

Respectfully submitted,

Dated: January 28, 2012.

McMAHON LAW OFFICES, LTD.

FRED HOPENGARTEN, Esq.

By ________________________________

Brian M. McMahon

Attorneys for Plaintiffs

Thomas S. Taormina and

Midge A. Taormina

Dated: January 28, 2012.

THORNDAL ARMSTRONG DELK

BALKENBUSH & EISINGER

By: __________________________

Brent T. Kolvet, Esq.

Attorney for Defendant,

STOREY COUNTY

Will the County allow Tom to participate as his own Expert Witness?

Will the Public be allowed to participate in the Settlement Conference?

Will the Public be allowed at the Settlement Conference?

March 10, 2012

{Taormina and Storey County] Joint Status Conference Report

doc023.pdf

My Comments & Things #12

This is the important part:

2. DISCOVERY STATUS

This matter has been heavily litigated. The issues remain the same. At the completion of the first case, the Court directed this matter to be remanded to Storey County. In accord with the Court's directive to explore settlement, the parties have stayed discovery. The parties certainly will stipulate to any paper discovery or depositions in the interim in advance of the mediation. The parties have agreed to make parties reasonably available for deposition or meeting. Mr. Taormina's deposition is currently scheduled to convene on April 4, 2012. The administrative result of Storey County's denial of Taorminas' request for permitting for his towers give rise to this action. Now that Storey County has denied the Taorminas' use, the matter is ripe for judicial review. The issues in the first case, generally referred to as Taormina 1, Case Number 3:09-CV-00021-LRH-VPC, present the same and very similar issues with some additional facts based upon Storey County's denial at the completion of the administrative process. Accordingly, the discovery is limited and the parties have requested the Court's assistance to proceed with a settlement conference to limit the expense of discovery and pleading.

{Emphasis added}

1. At the January 30 hearing Magistrate Cooke said she would like the issue resolved by negotiation. Was that simply an expression of her preference or was that code for a Directive? And is a Directive the same as an Order?

2. Tom’s attorneys want to ignore the real result of Taormina 1. The real result of Taormina 1 was that the court said Tom had the remedy of applying for a Special Use Permit under County Ordinance 17.62.010 which states:

Chapter 17.62 SPECIAL USES

SectionNo(17.62.010)

Applicability.

(Ord. 159 §. 2(part), 1999)

See http://www.storeycounty.org/countycode/detail.asp?id=17.62.010

Then, in a letter to Senior Planner Osborne, Tom agreed that his Application for a Special Use Permit would be under Ordinance 17.62.010. Click here for the Letter to Osborne

That was the last we heard of 17.62.010 except when I brought it up at the various public meetings. Tom (through Fred) never presented any evidence that his proposed new towers (or even his old towers higher than 45’) were essential or desirable for the public convenience or welfare

We haven’t heard about it in this case (Taormina 2).

We have Tom’s attorneys saying that:

The issues in the first case, generally referred to as Taormina 1, Case Number 3:09-CV-00021-LRH-VPC, present the same and very similar issues with some additional facts based upon Storey County's denial at the completion of the administrative process.

And the County (through its attorneys) has agreed to it.

No, No, No. The issues are not the same or even similar.

The Virginia & Truckee Railroad (http://www.virginiatruckee.com/) is not the only railroad in Virginia City these days.

March 15, 2012

[Court] MINUTES OF PROCEEDINGS

doc024.pdf

These are the minutes of a Court hearing held on March 12.

MINUTES OF PROCEEDINGS

DATED: March 12, 2012

PRESENT: THE HONORABLE VALERIE P. COOKE, MAGISTRATE JUDGE

Deputy Clerk: Lisa Mann Court Reporter: FTR

Counsel for Plaintiff(s): Brian McMahon and (By telephone) Fred Hopengarten

Counsel for Defendant(s): Brent Kolvet

PROCEEDINGS: CASE MANAGEMENT CONFERENCE

11:00 a.m. Court convenes.

The Court advises the parties the motion to waive LR IA 10-2, permitting counsel to continue representation [12] concerning Mr. Hopengarten remains under submission to the District Court.

The Court further advises counsel written discovery is not filed in Federal Court; therefore, plaintiffs’ expert disclosure; FRCP Rule 26 (#21) is STRICKEN.

The Court notes the parties request in the joint status report (#23) that a settlement conference be scheduled. Therefore, a settlement conference is set for Tuesday, April 17, 2012 at 9:00 a.m.

The deputy court clerk is directed to issue the standard order scheduling settlement conference.

IT IS SO ORDERED.

11:09 a.m. Court adjourns.

THEREAFTER, the deputy court clerk advises counsel of a conflict with the Court’s calendar for Tuesday, April 17, 2012, provides additional dates for a settlement conference, and requests that counsel advise which dates they are available to schedule the settlement conference in this action.

My Comments & Things #13

1. The Court hasn’t forgotten Fred’s motion to waive the rules to allow him to appear for Tom. Fred, Brian, and Tom will have to twist slowly in the wind, waiting to find out.

2. The Court says that written discovery (Document 21) is not filed in Federal Court and therefore, “plaintiff’s expert disclosure; FRCP Rule 26 (#21) is stricken.” (Apparently, Brian still thinks he is in a Nevada state court.)

3. A settlement conference was scheduled for April 17.

4. After the hearing was adjourned it was discovered there was a conflict with the Court’s calendar for that date. The new date is not known.

5. The March 12 meeting was announced in the Minutes of the January 30 hearing (Document 19). I’m sorry I missed it. As I found out at the January 30 hearing, some of the most important parts don’t make it into the official minutes.

Hopefully, the date and time of the next hearing be announced and I will go.

March 28, 2012

[Taormina and Storey County] Stipulation Regarding Settlement Conference

doc025.pdf

This is interesting:

STIPULATION REGARDING SETTLEMENT CONFERENCE

Plaintiff, Tom Taormina, by and through its attorneys, McMahon Law Offices, Ltd., and Defendant, Storey County, (collectively the “Parties”), have met and conferred regarding the Court's directive on a settlement conference and hereby stipulate as follows:

1. In accord with the Joint Supplement to Status Conference filed on February 28, 2012, the parties confirm their request for the Court, through this Magistrate, to schedule a settlement conference/mediation. Both parties agree that the use of the Court would be most productive.

2. Both parties have agreed to a Settlement Conference date of Monday, April 16, 2012, at 9:00 a.m, which date and time are currently scheduled with the Court.

3. Mr. McMahon has a mediation scheduled on April 16, 2012, in another matter and will not be able to attend the Settlement Conference. Mr. Hopengarten, pending a decision on the Motion to Waive LR IA 10-2, Permitting Counsel to Continue Representation, which was filed with the Court on November 16, 2011, will attend the Settlement conference as lead counsel for the TAORMINAS.

4. IT IS HEREBY STIPULATED AND AGREED by and between the parties that pending a decision from the Court on Mr. Hopengarten's Motion to Waive LR IA 10-2, Permitting Counsel to Continue Representation, Mr. Hopengarten will appear in lieu of Mr. McMahon, as counsel for the TAORMINAS at the Settlement Conference which will be held on April 16, 2012 at 9:00 a.m. If there is no ruling on the Motion before April 16, 2012, the parties will reschedule the Settlement Conference with the Court.

IT IS SO STIPULATED.

Dated this 28th day of March, 2012.

McMAHON LAW OFFICES, LTD.

//s// Brian M. McMahon

By: __________________________

Brian M. McMahon, Esq.

Attorney for Plaintiff,

TOM TAORMINA

Dated this 28th day of March, 2012.

THORNDAL ARMSTRONG DELK BALKENBUSH & EISINGER

//s// Brent T. Kolvet

By: __________________________

Brent T. Kolvet, Esq.

Attorney for Defendant,

STOREY COUNTY

IT IS SO ORDERED.

Dated this _____ day of _____________, 2012.

___________________________

DISTRICT JUDGE

My Comments & Things #14

1. Tom’s Attorneys (Fred and Brian) and the County’s attorney (Brent) have agreed to a settlement conference on Monday, April 16, 2012, at 9:00 a.m.

2. Brian can’t make it so Tom will be represented only by Fred.

3. However, this will only happen if the Court rules on Fred’s motion to represent Tom. Paragraph 4 probably should have said, “… pending a favorable decision from the Court on Mr. Hopengarten's Motion to Waive LR IA 10-2, …” since, if Fred’s motion is denied, he won’t be representing Tom.

It looks to me that Brian and Fred are trying to force the Court’s hand.

Magistrate Judge Cooke said she would like the issue settled by negotiation.

Brian and Fred (and Brent) are saying, ok, but only if you grant Fred’s motion to waive the rules so he can represent Tom.

What if the reason that Magistrate Judge Cooke wanted the issue settled by negotiation was so the Court wouldn’t have to rule on Fred’s motion?

This stipulation has to be signed off by Judge Jones.

Let’s see how he feels about what has to be considered an attempt at blackmail.

And why did Brent go along with this?

April 3, 2012

[Court] Minute Order in Chambers

doc026.pdf [no document]

MINUTE ORDER IN CHAMBERS of the Honorable Chief Judge Robert C. Jones, on 4/3/2012. IT IS ORDERED that this case is reassigned to Judge Larry R. Hicks for all further proceedings. Chief Judge Robert C. Jones no longer assigned to case. All further documents must bear the correct case number 3:11−cv−645−LRH−VPC. (no image attached) (Copies have been distributed pursuant to the NEF − BLG) (Entered: 04/03/2012)

I wonder why the case has a new judge?

Is Judge Hicks being punished for something?

April 6, 2012

[Court] Order granting Stipulation (#25)

doc027.pdf

The important part is:

The Court has not ruled on Fred’s motion and refuses to be stampeded.

We will just have to see how it plays out.

April 10, 2012

[Court] Minute Order

doc028.pdf

PRESENT: THE HONORABLE LARRY R. HICKS, U.S. DISTRICT JUDGE

DEPUTY CLERK: NONE APPEARING REPORTER: NONE APPEARING

COUNSEL FOR PETITIONER(S): NONE APPEARING

COUNSEL FOR RESPONDENT(S): NONE APPEARING

MINUTE ORDER IN CHAMBERS:

Before the court is Plaintiffs’ Motion to Waive LR IA 10-2, Permitting Counsel to Continue

Representation (#121). Good cause appearing,

Plaintiffs’ Motion to Waive LR IA 10-2, Permitting Counsel to Continue Representation

(#12) is GRANTED. Attorney Fred Hopengarten may continue to represent plaintiffs without filing

in this matter a verified petition for permission to practice in this case only by attorney not admitted

to the Bar of this court and designation of local counsel.

IT IS SO ORDERED.

LANCE S. WILSON, CLERK

By: /s/

Deputy Clerk

1Refers to court’s docket number.

Finally, some good news for Tom.

Fred’s motion to waive the rules to allow him to continue to represent Tom has been granted (which wouldn’t have been necessary if Fred had followed the rules in the first place).

April 12, 2012

The Stipulation approved by the Court said that a Settlement Conference was scheduled for Monday April 16, at 9 am. However, it also said that unless the Court ruled on Fred’s Motion to waive the rules so he could represent Tom, the Settlement Conference would be rescheduled (Document 27 – April 6, 2012).

The Court granted Fred’s motion to continue to represent Tom on April 10 (Document 28).

Therefore, it would be reasonable to assume that the Settlement Conference will take place on Monday, April 16.

On Thursday, April 12, I called the Clerk’s Office to ask if the Public will be allowed at the Settlement Conference on Monday.

I was told:

1. The Public is not allowed at Settlement Conferences.

2. There is no Settlement Conference scheduled for Monday.

The nice lady in the Clerk’s Office was very sure of these things.

However, I cannot verify them because:

1. The Court does not post its schedule online.

2. The Court Administrator for Magistrate Judge Cooke was not in today and will not be in tomorrow.

(There has been no change in the Docket Report. For today’s Docket Report click here.)

What to do?

I don’t think I will be at the Federal Courthouse on Monday at 9 am. Even if the Settlement Conference were to take place I would not be allowed in to see it.

Assuming that a Settlement Conference does take place sometime, it will mean that this political issue will be decided in secret.

Not only that, only one County Commissioner can be present at the Settlement Conference. If there were more than one, it would be a violation of Nevada’s Open Meeting Law which requires that meetings of public bodies be held in public.

Stay tuned.

R. Settlement Conference presided over by Magistrate Valerie Cooke (or was it a trial held in secret?)

April 17, 2012

The Settlement Conference that I was told by the Clerk’s Office last week was not on the schedule, was held yesterday.

This is the docket report entry for April 17, 2012. (For the full Docket Report click here.)

MINUTES OF PROCEEDINGS − Settlement Conference held on 4/16/2012 before Magistrate Judge Valerie P. Cooke. Crtrm Administrator: Rosemary Damron; Pla Counsel: Fred Hopengarten; Def Counsel: Brent Kolvet; Court Reporter/FTR #: FTR 4:51:51 − 5:10:26; Time of Hearing: 9:00 a.m. − 5:10:26 p.m.; Courtroom: 1. Also present for this proceeding in addition to Mr. Hopengarten, Mr. Taormina and Mr. Kolvet are Mr. Kershaw, Chairman, Storey County Commission; Mr. Whitten, Storey County Manager; Mr. Maddox, District Attorney for Storey County; Mr. Osborne, Storey County Planner; and Mr. Hamlin, on behalf of the insurance carrier. The Court and parties conducted settlement negotiations in chambers. The parties reached a settlement agreement. The terms of the settlement as outlined on the record are subject to approval by the Storey County Commission at a duly noticed public meeting. The parties have a binding settlement agreement. This Court retains jurisdiction over the terms of the settlement pending the filing of the stipulation of dismissal. Assuming this case is on Storey County's agenda for the vote in May, a stipulation and order for dismissal shall be submitted by Monday, June 18, 2012. If this matter is not on the May agenda for approval by Storey County, counsel will submit a notice to the court. The terms of the settlement agreement are placed on the record. The recording of this proceeding is sealed. IT IS SO ORDERED. Settlement documents are due by 6/18/2012.(no image attached) (Copies have been distributed pursuant to the NEF − RD) (Entered: 04/17/2012)

{Emphasis added}

Thus, if you call the Clerk’s Office at U.S. District Court for the District of Nevada you cannot count on getting truthful information.

I talked to DA Maddox today.

He said he expects that the settlement will be in the information packet for the County Commissioners meeting where the settlement agreement will be up for approval. And that is all he could say about that.

He also mentioned that Brent Kolvert, Esq. had been hired by the County’s insurance carrier, which explains the insurance carrier mentioned in the Docket Report entry.)

That explains a lot.

When I was at the January 30 hearing I thought that Brent and Brian (Tom’s attorney) were very friendly to each other. If I didn’t know that they were opposing counsel I would have thought they were on the same team.

Indeed, before the hearing started Brian told Brent a funny story. (In the public area where I was sitting I could not help hearing him.)

It seems that the police had arrested a guy for something.

The police decided to put the guy in a restraint chair.

The guy was a big man (about 300 lbs) and could not fit in the restraint chair.

The police tried to make him fit.

He fell out and they tried again.

He fell out again and this time he hit his head. There was blood everywhere.

The guy sued the manufacturer of the restraint chair.

Now, isn’t that a funny story? Brian thought it was. Brent seemed to think so, too, unless he was just being polite.

The Reno telephone book has a listing for Brent Kolvert. If that is the same Brent Kolvert then he doesn’t live here. He lives in Reno.

That is who is making the decisions about whether Storey County’s ordinances will be enforced.

He isn’t working in the best interests of the County, he is working in the best interests of an insurance company.

Have we been sold out?

We will have to wait to find out.

April 27, 2012

The Taormina Tower Agreement is on the agenda for the Storey County Commissioners Meeting on Tuesday, May 1, 2012 at 2 pm at the old Courthouse on B Street (next to Piper’s Opera House).

For the Notice, click here.

Here is the Agenda item.

*DISCUSSION/POSSIBLE ACTION: Possible approval of settlement agreement between Thomas & Midge Taormina and Storey County regarding their application and determination of Special Use Permit 2011-010 for purposes of allowing, constructing and/or limiting multiple amateur radio antenna support structures with heights in excess of 45 feet on their property located at 370 Panamint Road, Highland Ranches, Storey County, Nevada. Possible action may also provide for allowing, constructing and/or limiting similar support structures of 45 feet or less and may alter the earlier Board of Commissioners determination made on June 7, 2011.

Usually, when there is a lot of public interest in an issue, they move the Commissioners meeting to a later time (like 6 pm) so that more people can go.

Not this time.

Also, the Nevada Revised Statutes NRS 241.020(5) and NRS 241.020(6) require that (with a few exceptions that do not apply here) if a document is going to be considered at a meeting the document has to be provided to a member of the Public who requests it, and the document has to be provided at the same time it is provided to the members of the public body. (That means the Commissioners.)

NRS 241.020(5)

5. Upon any request, a public body shall provide, at no charge, at least one copy of:

(a) An agenda for a public meeting;

(b) A proposed ordinance or regulation which will be discussed at the public meeting; and

(c) Subject to the provisions of subsection 6, any other supporting material provided to the members of the public body for an item on the agenda, except materials:

(1) Submitted to the public body pursuant to a nondisclosure or confidentiality agreement which relates to proprietary information;

(2) Pertaining to the closed portion of such a meeting of the public body; or

(3) Declared confidential by law, unless otherwise agreed to by each person whose interest is being protected under the order of confidentiality.

NRS 241.020(6)

6. A copy of supporting material required to be provided upon request pursuant to paragraph (c) of subsection 5 must be:

(a) If the supporting material is provided to the members of the public body before the meeting, made available to the requester at the time the material is provided to the members of the public body; or

Although it requires that a member of the Public specifically request documents (which I have done), several months ago the County started providing them to everyone in an Agenda with a Supplemental Packet of Documents.

Here is the Agenda-with-Packet for the May 1 meeting. (It’s a 5 MByte file). Click here.

Here is the packet for the Taormina Agreement. (It’s only 57 Kbytes). Click here.

Or, you can read it here:

Storey County Commissioners' Office and Planning Division

Staff Recommendation Summary

NOTE: FINAL WORDING OF THE CONDITIONS RELATED TO THE SETTLEMENT AGREEMENT ARE STILL UNDER REVIEW BY LEGAL COUNSELS AT THE CUSTOMARY TIME THE COMMISSIONER'S OFFICE PREPARES SUPPORT DOCUMENTATION FOR PUBLIC AND COMMISSIONER'S AVAILABILITY. COMMISSION STAFF INTENDS TO REPOST THE FINAL STAFF REPORT INCLUSIVE OF PROPOSED TERMS AND CONDITIONS ONCE COUNSELS ARE IN AGREEMENT TO THE DOCUMENT LANGUAGE.

I. Meeting Date: May 1, 2012

II. Agenda Item: DISCUSSION / POSSIBLE ACTION: Possible approval of settlement agreement between Thomas and Midge Taormina and Storey County regarding their application and determination of Special Use Permit 2011-010 for purposes of allowing, constructing and/or limiting multiple amateur radio antenna support structures with heights in excess of 45 feet on their property located at 370 Panamint Road, Highland Ranches, Storey County, Nevada. Possible action may also provide for allowing, constructing and/or limiting similar support structures of 45 feet or less and may alter the earlier Board of Commissioners determination made on June 7, 2011.

III. Staff Recommendation: Pending

PROPOSED MOTION: Pending

IV. Conditions of SUP Approval: Pending

Prepared by Storey County staff and legal counsel

In other words, it’s not finished.

Note that NRS requires that documents be provided to the public the same time they are provided to the Commissioners.

Suppose they don’t give copies of the Agreement to the Public until 5 minutes before the start of the meeting.

If they are complying with NRS 241.020 it means that the Commissioners didn’t get the Agreement until 5 minutes before the start of the meeting.

If that happens it would be irresponsible for the Commissioners to approve an Agreement that they have not had time to read (and properly consider), and the item should be continued to the next meeting.

It would also be irresponsible for the Commissioners to approve an Agreement that the Public has not had the opportunity to read (and properly consider). Telling the Public that they can read the document during the meeting before it comes up on the Agenda would show disrespect for the Public. It would also give the appearance that the County doesn’t want the Public to read the Agreement in time to make comments to the Commissioners before they act on it.

So, stay tuned.

While we are waiting to see how this plays out, you might be interested to know that this is not just a local issue having limited interest.

February 8, 2012 was a very interesting day.

There were an unusually large number of hits to this blog. Not all of them were from my posting in the Yahoo Group.

For the February 8 Web hits to this blog click here. (It’s 36 pages.)

Here are some of the highlights:

Page 2 - The Republic of Moldava

Page 2 - Poland

Page 3 - Switzerland

Page 6 - Department of Veterans Affairs

Page 9 - You won't believe it

Page 11 - Nevada Land & Resource Co.

Page 20 - Department of Homeland Security

As they used to say in the 1960s, “The Whole World is Watching.”

April 30, 2012

The following notice was released today. The Tower Agreement is still being worked on so the County Staff is recommending that the matter be continued until the next County Commissioners meeting on May 21.

Good idea.

(Note that since the Agenda is set by the Commissioners it can only be changed by the Commissioners. However, it would be a good bet that the matter will be continued to the May 21 meeting.)

Storey County Commissioners’ Office and Planning Division

Staff Recommendation Summary - Revised

NOTE: DRAFT LANGUAGE OF THE CONDITIONS RELATED TO THE SETTLEMENT AGREEMENT REMAINS UNDER REVIEW BY LEGAL COUNSELS AND STAFF. IT IS NOT ANTICIPATED TO BE FINALIZED IN REASONABLE TIME FOR COMMISSION OR PUBLIC REVIEW PRIOR TO THE COMMISSION MEETING OF MAY 1, 2012. STAFF INTENDS TO RECOMMEND CONTINUATION OF THIS ITEM UNTIL THE COMMISSION’S NEXT SCHEDULED MEETING ON MAY 21, 2012.

THE RECOMMENDED RESCHEDULED DATE COINCIDES WITH THE DATE ESTABLISHED BY THE STATE DEPARTMENT OF TAXATION REQUIRING THAT WE HOLD OUR FINAL BUDGET HEARING AND THIS PROCESS GENERALLY IS THE PRIMARY FOCUS OF THE SECOND COMMISSION MEETING IN MAY. ACCORDINGLY, STAFF WILL ALSO RECOMMEND TO THE COMMISSION THE STARTING TIME FOR THE MEETING ON MAY 21ST BE ADVANCED FROM 2:00 PM TO 1:00 PM, BUT ONLY FOR PURPOSES OF ADDRESSING THE FINAL BUDGET AND OTHER ROUTINE BUSINESS MATTERS. THE MATTER REGARDING SUP 2011-010 WILL BE SCHEDULED ON A TIME SPECIFIC BASIS NOT TO BEGIN UNTIL 2:00 PM OR AFTER AS PRACTICABLE. PLEASE NOTE THIS MEETING OCCURS ON THE THIRD MONDAY IN MAY AS REQUIRED FOR THE FINAL BUDGET HEARING AND NOT THE THIRD TUESDAY AS OCCURS ON OTHER COMMISSION MEETINGS. PLEASE CONTACT THE COMMISSIONER’S OFFICE AT (775) 847-0968 WITH QUESTIONS.

I. Meeting Date: May 1, 2012

II. Agenda Item: DISCUSSION / POSSIBLE ACTION: Possible approval of settlement agreement between Thomas and Midge Taormina and Storey County regarding their application and determination of Special Use Permit 2011-010 for purposes of allowing, constructing and/or limiting multiple amateur radio antenna support structures with heights in excess of 45 feet on their property located at 370 Panamint Road, Highland Ranches, Storey County, Nevada. Possible action may also provide for allowing, constructing and/or limiting similar support structures of 45 feet or less and may alter the earlier Board of Commissioners determination made on June 7, 2011.

III. Staff Recommendation: Continue until May 21, 2012 Commission meeting.

PROPOSED MOTION: Continue to the meeting of May 21, 2012 at a time specific of 2:00 pm or later.

IV. Conditions of SUP Approval: Pending

Prepared by Storey County staff and legal counsel

For the document in its original MS Word format click here

For a PDF of the document click here.

May 16, 2012 [Revised 5/18/2012]

The County released the information packet for the May 21 (Monday) meeting of the County Commissioners.

I originally thought it contained the Taormina Tower Agreement. It doesn’t. It contains the Staff Recommendations Summary.

The Staff Recommendations Summary is not the Taormina Tower Agreement. (I discuss this in a later section.)

For the Staff Recommendations Summary click here.

I have used OCR to convert it to html. Click here.

I expect to post my comments soon.

In the meantime, the July 2008 Petition against Tom’s Towers was signed by 106 people. If those of you who signed the petition are still interested in the issue you can send your comments directly to the following:

commissioners@storeycounty.org,
bkershaw@storeycounty.org,
bsjovangen@storeycounty.org,
ghess@storeycounty.org,

scda@storeycounty.org,
pwhitten@storeycounty.org,

hkiechler@storeycounty.org

Even if you didn’t sign the petition you can send your comments, even if you think the Commissioners should approve the proposed agreement.

If you live in Storey County you should say that in your email. If you don’t, they will have to assume that you don’t live here and your comments will receive less consideration.

But even if you don’t live here you can say how you feel about the issue.

From my server logs I see that this issue has an international audience.

For example, there are people in Switzerland, Poland, and the Czech Republic who are interested in Tom’s Towers.

Are you interested because you want to have reliable communications with Tom on the 80 Meter band?

Or, maybe, are you interested in this issue because you would hate to see another mountain paradise spoiled by one person’s selfishness?

Tom’s Towers are right at the entrance to our community and loom over the mail shed in the left of the picture.

(The camera doesn’t fully capture how intrusive the towers are.)

With Tom’s new towers, they will loom even more.

May 17, 2012

My Comments & Things #15 – The County’s Insurance Carrier

The Docket Report for the April 16 Settlement Conference lists among the attendees: Mr. Hamlin, on behalf of the insurance carrier.

That makes it natural to ask, what insurance carrier?

And who is Mr. Hamlin?

These are the answers I was given.

1. The County has insurance for this case. It is the Nevada Public Agency Insurance Pool (www.PoolPact.com).

2. They are using Alternative Service Concepts, LLC (ASC) (http://www.ascrisk.com/) to actually handle the case.

3. The insurance carrier (either PoolPact or ASC, I’m not sure) is the one who hired Brent Kolvert to handle the case. The County did not hire Brent.

4. Mr. Hamlin is Dan Hamlin. Dan Hamlin is a Claims Adjuster.

Does Mr. Hamlin have expertise in communications and antennas?

No, he is just a Claims Adjuster.

The implications are dismaying. It means that there was no one at the Settlement Conference representing the County who was able to refute Tom’s technical arguments. It means that, effectively, Tom was allowed to be an Expert Witness (indeed, the only Expert Witness) in his own case.

This is who the Nevada Public Agency Insurance Pool is. From their Web site at www.PoolPact.com:

In the early eighties, public entities throughout the U.S. faced an insurance crisis. Commercial insurance carriers began excessively raising premiums for public entities, and in some cases, exited states or cancelled coverage, leaving many Nevada municipalities without adequate, affordable insurance coverage.

In response to this crisis, The Nevada Public Agency Insurance Pool (POOL) was formed by Nevada public entities in 1987. By pooling resources to create POOL, Nevada public entities discovered that they could obtain quality property casualty coverage at a reasonable cost. As an added benefit, POOL members also found that they could access risk management resources superior to those previously offered to smaller, rural municipalities. POOL was created for the following purposes:

To fill a void in the traditional insurance marketplace, and offer affordable risk financing to its members.

To identify legislative and regulatory issues affecting public entities and to provide information to assist members in addressing such issues.

To act as a clearinghouse for the collection and dissemination of data and resources relating to risk management and to encourage and support new research for our members.

To provide meaningful and significant education and professional support for the members, governing bodies and staffs of our members.

After successfully organizing the property-casualty pool, the members organized the Public Agency Compensation Trust (PACT) in 1996 to provide Workers Compensation coverage for it’s membership.

The company that is actually handling it is Alternative Service Concepts in Nashville, Tennessee. According to their Web site at http://www.ascrisk.com/:

Alternative Service Concepts, LLC (ASC) is a full-service third party workers’ compensation, property and liability claims administrator. With national service capabilities in the continental US, ASC helps organizations realize significant cost savings and positive outcomes through effective and efficient claims management.

Other than that, their Web site is mostly incomprehensible. There are words properly spelled and grammatically connected but they don’t say anything that I can understand. For example, from http://www.ascrisk.com/About-ASC

Customer is an insurance company serving the needs of a trade association and wanted to set-up an in-house operation, but didn't want to go through the hassle and time commitment of finding and customizing a risk management information system (RMIS). ASC's solution was a fully supported claim solution which allowed the customer to be operational in a shorter timeframe, compared with the year of planning and implementation normally required for an in-house solution. In addition, the customer's operation would be supported the same as an ASC office for a flat fee, rather than every request requiring a new statement of work normally required if the customer purchased or leased their own RMIS.

So I called ASC and spoke to a very nice young woman with a truly beautiful voice. I told her who I was and that I could not understand from their Web site what they did. I also told her that the reason I was interested was because of the Taormina Tower case.

I asked her, “What, exactly, does your company do?”

She said they mostly handle Workman’s Compensation claims, and they do not get into politics.

Unfortunately, I failed to write down her name (I was transfixed by her beautiful voice) so when I called back today I didn’t know who to ask for.

The young man who answered the phone suggested I call Mr. Hamlin.

So I did.

I am sorry to report that Mr. Hamlin is very disagreeable person. He refused to even say whether it was his company (ASC) or Nevada Public Agency Insurance Pool who hired Brent. If I ever need a Claims Adjuster it won’t be Dan Hamlin.

Hamlin suggested I ask Brent.

So I called Thorndal, Armstrong, Delk, Balkenbush & Eisinger. I identified myself and asked for Mr. Kolvert.

I was told he was unavailable but would call me back within the next 10 minutes.

He didn’t.

Twenty minutes later I tried again. Brent had left, presumably for lunch. I was transferred to his secretary, who had left last week. His new secretary is a temp who didn’t know anything about his cases. I was invited to leave a voicemail. I declined.

I called the Nevada Public Agency Insurance Pool and talked to Wayne Carlson.

I finally got my answer.

ASC selected Brent from a list of attorneys provided by the Nevada Public Agency Insurance Pool.

Now, why was it so hard to get that information?

Finally, I have tried asking the few people I have been able to talk with the following:

It is clear from the Taormina Tower Agreement that Storey County has handed its sovereignty over to you.

You now decide how the County Ordinances are to be interpreted and even if they are to be enforced.

So, now that you are effectively running Storey County, what are your plans for my County?

Not surprisingly, no one wanted to talk about it.

May 19, 2012

My Comments & Things #16 – Something is Very Wrong Here

I was focusing on what Tom is getting (which is just about everything he wants) when (very early this morning) I realized that the document in the Information Packet is not the Tower Agreement. It is the Staff Recommendations Summary. (And note that it is only a summary, which means that there must be the full staff recommendations somewhere.)

1. The Court stated that the settlement agreement is subject to approval of the County Commissioners.

From MINUTES OF PROCEEDINGS:

The Court and parties conducted settlement negotiations in chambers. The parties reached a settlement agreement. The terms of the settlement as outlined on the record are subject to approval by the Storey County Commission at a duly noticed public meeting. The parties have a binding settlement agreement. This Court retains jurisdiction over the terms of the settlement pending the filing of the stipulation of dismissal. Assuming this case is on Storey County's agenda for the vote in May, a stipulation and order for dismissal shall be submitted by Monday, June 18, 2012. If this matter is not on the May agenda for approval by Storey County, counsel will submit a notice to the court. The terms of the settlement agreement are placed on the record.

2. The approval of the settlement agreement is on the Agenda.

THE FOLLOWING ITEM WILL BE HEARD AT 2:00 P.M.

For the full agenda click here.

3. Therefore, NRS 241.020 requires that the settlement agreement be made available to the public at the same time that it is given to the County Commissioners. (For the discussion of NRS 241.020 click here.)

The Staff Recommendations Summary is not the settlement agreement.

A proper settlement agreement would include at least the following:

1. Both parties shall bear their own costs (or, one side pays the other’s costs).

2. This Agreement constitutes the complete and full agreement.

Things like that.

Have the County Commissioners been given a copy of the settlement agreement?

If they have not been given a copy of it, how do they feel about the Planning Department getting a copy of it, but not them?

I am obviously going to make a great deal of noise about this deception at the meeting on Monday.

I fired off an email to Commissioner Bill Sjovangen. Bill said that Pat Whitten is out all week and Bill Maddox is out today so he won’t be able to look into it until Monday Morning.

Even if the actual settlement agreement is made available Monday morning there will not be enough time properly read it before the meeting at 2 pm.

There are sure to be lots of things (like in the Staff Recommendations Summary) where you will ask yourself:

1. What does that mean?

2. Why is that in there?

Here is my analysis of the Staff Recommendation Summary:

(The text comes from my OCR conversion.)

=========================================================

II. Agenda item: DISCUSSION / POSSIBLE ACTION: Possible approval of settlement agreement between Thomas and Midge Taormina and Storey County regarding their application and determination of Special Use Permit 2011-010 for purposes of allowing, constructing and/or limiting multiple amateur radio antenna support structures with heights in excess of 45 feet on their property located at 370 Panamint Road, Highland Ranches, Storey County, Nevada. Possible action may also provide for allowing, constructing and/or limiting similar support structures of 45 feet or less and may alter the earlier Board of Commissioners determination made on June 7, 2011.

III. Staff Recommendation: In accordance with the Settlement Agreement between the plaintiff Thomas and Midge Taormina and the defendant Storey County on April 16, 2012, county staff recommends the following motion for approval of SUP Application No. 2011-010. The conditions of the SUP listed below should accompany and become part of that motion. The motion for approval, in accordance with said settlement, should apply to amateur radio antenna support structures at, below, and over 45 feet in height.

PROPOSED MOTION: Based on findings and compliance with all conditions and stipulations imposed in accordance with the Settlement Agreement between the SUP Applicant and Storey County, staff moves to recommend that the Board of Storey County Commissioners approve SUP Application No. 2011-010 and include in that motion all conditions of the SUP listed in Section IV of this summary report.

IV. Conditions of SUP Approval. All of the following conditions of Special Use Permit (SUP) No. 2011-010 shall be met to the satisfaction of Storey County Community Development Department staff, unless otherwise noted:

Staff Recommendation Summary

My Comments

1. Special Use.

SUP No. 2011-010 shall be for the purpose of erecting and maintaining amateur radio antenna support structures pursuant to the settlement agreement between Thomas and Midge Taormina (the "Permit Holders") and Storey County and the SUP approval by the Board of Storey County Commissioners for the property located at 370 Panamint Road (APN 003 431-18), Highland Ranches, Storey County, Nevada (the "Property"). Issuance of this SUP does not convey property rights of any sort or any exclusive privilege, nor does it authorize any injury to persons or property, any invasion of other private rights, or any infringement of state or local laws or regulations.

1. It looks to me that the Staff Recommendation Summary does convey property rights to Tom. The property rights are the right to have the new and old (non-conforming) towers.

2. Now look at the phrase, “nor does it authorize any injury to persons or property, any invasion of other private rights, or any infringement of state or local laws or regulations.”

Why is that there?

Who is that directed to?

Since it includes “any infringement of state or local laws or regulations” it must be directed to Tom, since Tom is the one who has openly flouted local laws and regulations (the Tower Ordinance) in the past.

Why is it necessary to say that Tom is not authorized to commit “any injury to persons or property, … “ ?

Is the County afraid that Tom will use the staff recommendations as permission to go around shooting the people who opposed him?

Staff Recommendation Summary

My Comments

2. Required Permits and Licenses.

If not already done, the Permit Holders shall apply for all required permits and licenses, including building and fire permits as may be necessary, for the project within twelve (12) months from the date of final approval of SUP No. 2011-010. All applications for permits or licenses will be processed expeditiously. In the event that the amateur radio licenses for Thomas and Midge Taormina expire for a period of 30 days or more, the associated antenna support structures shall be deemed abandoned and taken down in accordance with Condition No. 7 (Closure and Reclamation) of this SUP.

Yes, they already applied for the permits.

Wait until you see Condition 7. It ends up having no teeth.

Staff Recommendation Summary

My Comments

3. No transfer of Rights.

This SUP is personal to the Permit Holders and shall belong exclusively to Thomas and/or Midge Taormina and the real property applicable to this SUP so long as Thomas and/or Midge Taormina reside for a material part of each year on the property. This SUP shall not be transferrable.

I don’t think so. A new owner can sue the County, and the County will roll over for the new owner just like they did for Tom.

Staff Recommendation Summary

My Comments

4. Indemnification/Insurance.

The Permit Holders agree to hold Storey County, its officers, and representatives harmless from the costs and responsibilities associated with any damage or liability to persons or property and any/all other claims now existing or which may occur as a result of construction and maintenance under this SUP. The Permit Holders shall maintain satisfactory liability insurance for all aspects of this operation under SUP No. 2011-010 for a minimum amount of $1,000,000.00 (one million dollars) and provide proof thereof to Storey County prior to the issuance of a building permit pursuant to the SUP.

This looks like it relates to a lawsuit Tom filed against the County in 2001: TAORMINA VS. STOREY CO. BLDG. DEP'T.

It seems that after he moved into his house he discovered that there were a number of things wrong with it.

Since the County had inspected various things in the house at various times and they had passed inspection, he demanded that the County pay to fix them.

The County refused, so he sued the County.

He also sued a number of other people, including the Highland Ranches Property Owners Association (HRPOA).

Tom lost.

He appealed to the Nevada Supreme Court.

He settled and, apparently, come away with nothing.

And he did owe the HRPOA some money.

He refused to pay the HRPOA until last year when they obtained a Writ of Execution ordering the Sheriff to seize Tom’s ham equipment and sell it at public auction to satisfy his debt, which by then had become around $12,000.

He paid the next day.

The Nevada Supreme Court has its cases online now.

For some reason there are two cases.

Here are the indexes for the two cases.

43682 40106

The links in the indexes go to the Nevada Supreme Court Web site.

As far as insurance is concerned, maybe Tom can use the same insurance company that the County uses.

That way, if the County has to sue him or if he sues the County again the insurance company can save money by using the same attorney for both sides.

Staff Recommendation Summary

My Comments

5. Emergency Telephone Contact.

Any persons located on the premises in connection with maintenance, repairs, or other work to the amateur radio system and associated antenna support structures shall be made aware to dial Storey County Emergency Services Direct-Connect 775.847.0950 (in lieu of 9-11) when dialing emergency service from cellular telephone. Emergency 9-11 still applies to landline telephones.

If your cell phone is registered in another area (such as Reno) and you call 9-1-1 (not 9-11) you will be connected to Reno 9-1-1, not Storey County 9-1-1.

Reno 9-1-1 is Emergency Dispatch, not to be confused with the TV show Reno 911.

Therefore, if you are on a cell phone and have an emergency in Storey County the safest thing to do is call Emergency Services Direct-Connect 775.847.0950 .

Staff Recommendation Summary

My Comments

6. Emergency Management Plan.

A comprehensive emergency management plan shall be developed by the Permit Holders and submitted to the Storey County Emergency Management Department for review and approval prior to securing rights to the SUP. The plan shall include, but not be limited to, the following in case of failure of one or more amateur radio antenna support structures and related appurtenances: (1) Permit Holders emergency contact phone number(s); (2) emergency contact procedure, including for Dispatch 9-1-1, Storey County Emergency Direct-Connect 775.847.0950, and Fire and Emergency Management Departments; (3) documenting and reporting; (4) post structure failure management, cleanup, reclamation, and material disposal; (5) electrical system shut-down procedure; (6) disclosure and management of hazardous materials (e.g., asbestos) or other conditions (e.g., radiation), if applicable; and (7) post structure failure damage reporting and treatment of affected neighboring properties.

This part looks reasonable. (This is the part that Tom will quote from this blog.)

Staff Recommendation Summary

My Comments

7. Abandonment/Closure/Reclamation.

Any antenna support structure out of operation for longer than (12) consecutive months shall be deemed abandoned. All antenna support structures and antennas shall be taken down at the Permit Holders' expense within 180 days of abandonment or as otherwise determined by a plan which is mutually acceptable to Storey County and the Permit Holders and submitted to be filed with Storey County Community Development. Under no circumstances shall Storey County, its officers, or representatives bear any cost or responsibility for the deconstruction, disassembly, or removal of any antenna support structure or reclamation.

The "or" can be interpreted (in a legal sense) as being inclusive so that both conditions must be met. (There is a similar problem with the use of the word "and" in a legal sense.)

(This is the type of argument that lawyers are paid to make. I’m doing it for free.)

If the County and the Permit Holders (Tom) can't agree on a plan to take the towers down then they don't have to be taken down.

The County says 180 days. Taormina says 180 years. They don't agree. The Towers stay.

And what can the County do anyway?

If Tom leaves the County (and leaves the towers up) he will be out of the County’s reach.

So they put a lien on his house which has either already been sold or has been foreclosed on by the mortgage company.

The only way for this section to have teeth is to require either:

1. The insurance policy include liability for taking the towers down; or

2. Tom post a bond with enough money to cover taking the towers down including the possibility of unexpected conditions encountered when taking the towers down.

Staff Recommendation Summary

My Comments

8. Finding of Necessity to Local Jurisdiction.

In accordance with section 17.62.010 of the Storey County Code and applicable FCC regulations Storey County finds that the Amateur Radio facility is used partly for the convenience and necessity of the local jurisdiction and community. Accordingly, the Permit Holders shall collaborate with Storey County to develop a mutually acceptable plan by which county-owned emergency radio communications repeater antenna(s) may be installed and operated on one or more antenna support structures applicable to this SUP (as compatible with all amateur radio equipment thereon or proposed to be placed thereon) and by which necessary ground support equipment may be placed and operated within the property of Tom and Midge Taormina. This condition of approval recognizes that Storey County shall be responsible for all costs for acquiring, installing, maintaining, operating (i.e., utility costs), and repairing the county-owned antennas, ground support equipment, and other appurtenances, including any associated financial burden by the Permit Holders, but Storey County shall not be assessed any -fee or other charge for said use of the tower and facility. Storey County will insure that any County-owned equipment placed upon exterior portions of the facility shall comply with the visual design requirements under this SUP.

This section is a moral outrage.

The County has twisted Storey Code Section 17.62.010 into something that it is not.

Section 17.62.010 says:

______________

_______________

1. Tom completely failed to show that his towers are in the public convenience or welfare. He didn’t even try.

2. Now the County has twisted this to be for the “convenience of the local jurisdiction” and to justify this they say they want to use Tom’s towers for an emergency communications repeater. They already have their own and they will have the use of the cell phone tower after it is approved (unless Tom’s supporters manage to block it.)

The County is insane. If they were to install an emergency communications repeater on Tom’s towers he would hold the system hostage to gain even more concessions from the County.

And, in an emergency, the system on Tom’s towers is unlikely to work.

Depending on such a system to work in an actual emergency is criminal negligence.

I want to know who in the County is planning on using Tom’s towers for an emergency repeater system, and I want him fired.

Staff Recommendation Summary

My Comments

9. Plans Submittal.

If not done already, the Applicants shall provide Storey County Community Development Department site plans, drawn to scale, which shall include dimensions of existing and proposed antenna support structures, including guy wires and anchor points, as applicable, setback dimensions, and driveway dimensions. It is hereby noted that all necessary plans appear to have been submitted to Storey County; if not, the Permit Holders and Storey County hereby agree to work together in good faith to get all necessary plans submitted as required by the Storey County Code and this SUP.

As the section notes, Tom already did that.

Staff Recommendation Summary

My Comments

10. Setbacks.

In accordance with Section 17.40.050 of the Storey County Code, minimum setbacks for each tower shall be as follows: (a) front yard, 30 feet; (b) rear yard, 40 feet; and (c) side yards, 15 feet. The minimum setback requirement shall apply to antenna support structures, antennas, foundation pads, and buildings. Reduced setbacks for guy wires, anchor points, and other appurtenances of the tower system shall be subject to the approval of the Storey County Building Department. Existing approved guy wire anchor(s) and associated guy wire foundation(s) shall be allowed to remain at their existing location(s) so long as they are located entirely within the Permit Holders property.

This does not seem to provide for the possibility (remote that it is) that a tower could fall down intact onto his neighbor’s property.

It is also possible (and not so remote) that a tower could suffer a catastrophic collapse, break up, and pieces (including pieces of the antennas) could be launched onto his neighbors’ property and through their houses.

Staff Recommendation Summary

My Comments

11. Restrictions on Mounted Devices; Anti-climbing Required.

The amateur radio antenna support structures shall be used exclusively for yagi array and wire amateur radio antennas. Except for antennas or other devices used for the exclusive use of the residence on the property, the antenna support structures shall not support common-carrier cellular telephone or any other commercial purpose antenna or device. The antenna support structures shall not be used to support other items not related to amateur radio operations. Anti-climbing devices shall be installed at each antenna support structure to protect the public.

This section looks ok.

Staff Recommendation Summary

My Comments

12. Noise.

Power generator(s) shall comply with Storey County Code, Chapter 8.04 and Storey County Code, § 17.40.070. Nonetheless, any generator(s) on the property shall only operate during power outages and/or during routine recharge and maintenance intervals. Maintenance/recharge operation shall be limited to three thirty-minute intervals per week and shall take place on weekdays (Monday thru Friday) between the hours of 11:00 a.m. and 3:00 p.m. Other maintenance and repair of the facility, except during emergencies, shall be limited to 9:00 a.m. and 5:00 p.m. during said weekdays.

A. This seems to come from the SUP for the cell tower project.

B. BTW, Storey County Code Chapter 8.04 NOISE CONTROL Section No (8.04.020) Restrictions states:

A. It is unlawful for any person to make, or cause to be made any loud, unnecessary or unusual noise which annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety of others.

B. The following acts, as delineated in Section 8.04.030, but not limited thereto, shall be subject to measure as shown in the table in this subsection.

1. The maximum sound pressure level radiated by any use or facility when measured at each boundary line shall not exceed these values: Octave Band Range in Cycles Per Second Sound Pressure Level in Decibels - 0.0002 Dyne Per Cm2 500 -1800 84

2. Sound pressure level shall be measured with a sound level meter conforming to standards prescribed by the American Standards Association including any subsequent amendment or approved revision thereof.

C. No provision of this section shall be held to apply to aircraft operations or temporary construction work.

_________________________________________________

Although it is inarticulately written, it seems to say 84 dBA in the band 500 Hz – 1800 Hz.

1. Part B refers to a table. There is no table.

2. The allowed sound level is 84 dBA. That is way too loud.

3. The frequency range of 500 Hz – 1800 Hz is way too narrow.

A sound level of 84 dBA is about the level of a pneumatic drill at 50 ft. or freight train cars at 50 ft.

See page 4 of this reference.

The range of human speech is approximately 300 Hz to 3400 Hz.

See: http://www.uoverip.com/voice-fundamentals-human-speech-frequency/

As a result County Code 8.04.020 fails to protect people from excessive noise.

Staff Recommendation Summary

My Comments

13. Lighting.

Any outdoor lighting shall be installed and operated in accordance with Chapter 8.02 of the Storey County Code ("Dark Skies"). No support structure or antennas applied thereto shall be constructed or altered to a height that would necessitate Federal Aviation Administration (FAA) beacon lighting. There shall be no direct or indirect illumination of or on any tower or antenna system. The FAA shall be the responsible agency for requiring, or not requiring, beacon lighting or other signaling devices to be applied to the structures.

The FAA describes several types of lights, such as:

1. Steady burning (L-810) lights.

2. Red flashing (L-864) beacon.

3. Medium intensity flashing white light.

See FAA ADVISORY CIRCULAR AC 70/7460-1K

Obstruction Marking and Lighting (Click here)

Only one type of lighting is characterized as a beacon.

This section only addresses beacon lighting (Red Flashing Beacon) and leaves out Steady Burning Lights and the infamous Flashing White Light.

This section should explicitly say that if the FAA requires that a tower be lighted in any way, either now or in the future, then the tower must be reduced in height to where lighting is not required. If that is not possible then the tower must come down.

Staff Recommendation Summary

My Comments

14. Visual Impact.

All exterior finishes for each antenna support structure, including additional antenna support structures as applicable to the approved SUP, shall be non-reflective, dull in appearance, and gray in color (with a hue similar to that of the oxidized galvanized steel antenna support structures existing on-site) in order to facilitate blending with the backdrop terrestrial and sky environment. The existing and additional galvanized steel lattice antenna support structures may remain uncoated and exposed to the natural environment (as determined safe by the engineered design) in order to retain their naturally occurring dull gray exterior.

Nothing to see here. Just move along.

Staff Recommendation Summary

My Comments

15. Antenna Support Structures – Limitations and Height.

The following indicates the number and type of amateur radio antenna support structures (towers) that are permitted under this SUP. At no time during the duration of this SUP shall additional amateur radio antenna support structures be permitted on the property, including antenna support structures at, below, or above 45' in height. The Permit Holders shall be permitted to repair, remove, add to, modify, and maintain antennas upon each support structure in accordance with the provisions of this SUP without modifying or amending this SUP or applying for a new SUP. Building Permit requirements shall still apply in accordance with the Storey County Code. Antennas as well as fasteners and other holding devices placed upon the support structures shall not be designed or placed such as to violate the specific provisions or the letter and spirit of the regulations under this SUP.

a. Towers 1 and 2 (45' lattice): These structures exist as of the date of this SUP, are permitted to remain at or below 45', and shall otherwise remain unaltered from their current state, including height (unless reduced), width, shape, mass, and surface color/treatment.

b. Tower 3 (45' lattice): This structure exists as an 85' antenna support structure as of the date of this SUP. It shall be reduced to a total height at or below 45', shall remain a lattice structure, and shall remain at its current width, shape, mass, and surface color/treatment.

c. Towers 4 (45' lattice): This structure exists as a 110' antenna support structure as of the date of this SUP. It shall be reduced to a total height at or below 45', shall remain a lattice structure, and shall remain at its current width, shape, mass, and surface color/treatment.

d. Tower 5 (120' monopole): This structure shall be permitted as proposed in SUP Application No. 2011-010, Building Permit Application No. 8354, and the PE stamped engineered plans submitted to the Community Development Department, and shall remain at or below 120' in height.

e. Towers 6 and 7 (140' lattice): These structures exist as of the date of this SUP, are permitted to remain at or below 140' in height, and shall otherwise remain unaltered from their current state, including height (unless reduced), width, shape, mass, and surface color/treatment.

f. Tower 8 (175' monopole): This structure shall remain similar in width, shape, and mass as proposed in SUP Application No. 2011-010 and Building Permit Application No. 8354; however, it shall be limited to a total height at or below 175'. Submitted engineered plans for the previously proposed 195' support structure shall be amended as necessary for reduced height and submitted to the Community Development Department for approval.

This is the really bad part.

What would the SUP approved by the Planning Commission in March 2011 have given him?

For the minutes of the March 3, 2011 Planning Commission meeting click here. They start on page 8.

For an html version of the motion that was passed click here.

The motion says he would have been limited to four existing towers. But what four towers?

The Staff Report Section XI (page 20) refers in Proposed Motion A and Proposed Motion B to "the four (4) existing . . . towers applicable to this SUP."

The “four towers” do not include the existing towers less than 45’.

Therefore, there would have been six towers.

From the Staff Report of March 3, 2011 (page 5) the four existing towers greater than 45’ were:

____________

Tower 1 (140 feet) - This structure was installed in 1997. It has had successive iterations of antenna arrays installed on it. This tower is guyed in four places to concrete guy anchors. This structure was installed prior to adoption of Title 17 of the Storey County Code; thus this structure should be considered as a “non-conforming use” as defined by Chapter 17.06 therein. The structure must comply with applicable local building codes, as demonstrated by plans submitted by a Nevada licensed structural engineer.

Tower 2 (85 feet) -This structure was installed in 1998. It has had successive iterations of antenna arrays installed on it. This tower is guyed at four levels to concrete anchors. Similar to Tower 1, this structure was installed prior to adoption of Title 17 of the County Code and needs to be treated in accordance with the “non-conforming use” provisions. The local building code and certificate of engineering will need to apply as well.

Tower 3 and 4 (110 feet and 140 feet, respectively) –Tower 3 is a radiating antenna structure and Tower 4 is similar in design to Tower 1. Both were installed in 2007 and are guyed at three levels to concrete anchors. Tower 3 is proposed to be moved north- east to relieve the close proximity to the parcel’s western boundary. In accordance with sections 17.12.044 and 17.62.010 of the County Code the special use permit process will apply to these structures.

______________

What is Tom getting now?

1. Tower 1 and Tower 2 – existing towers no more than 45’ high.

2. Tower 3 - The existing 85’ tower will be reduced in height to no more than 45’ high.

3. Tower 4 – The existing 110’ tower will be reduced in height to no more than 45’ high.

4. Tower 5 – Tom gets a new 120’ tower.

5. Tower 6 and Tower 7 – Tom gets to keep the two existing 140’ towers

6. Tower 8 – Tom gets a new 175’ tower

What is the final tally?

1. He keeps the existing towers that are no more than 45’ high.

2. He keeps the existing 140’ towers.

3. The 110’ tower is reduced to no more than 45’ high but he gets a new 120’ tower.

4. The existing 85’ tower is reduced to no more than 45’ high but he gets a new 170’ tower.

How is this a compromise?

It isn’t. This is a sellout.

Staff Recommendation Summary

My Comments

16. Electrical Distribution and Controls.

The location, routing, and alignment of exterior electrical and communication controls, associated wiring, and power lines shall be approved by Storey County Building Department, when applicable.

I doubt it will be applicable.

Staff Recommendation Summary

My Comments

17. Compliance.

The Permit Holders shall be responsible for maintaining the premises and managing operations in accordance with all conditions and stipulations set forth by SUP 2011-010 and all other federal, Nevada statutes, and Storey County codes and regulations. Failure to comply with the requirements herein shall elicit a written warning to the Permit Holders by Storey County on the first and second offense. A third offense shall warrant Storey County to revoke the SUP. Storey County shall reserve the right to conduct periodic reviews of the Permit Holders compliance with all conditions and stipulations of the SUP.

Does anyone think the County is going conduct periodic reviews of Tom’s compliance with this SUP (which is already a travesty)?

Does anyone seriously think the County is ever going to enforce any of its ordinances on Tom ever again?

Staff Recommendation Summary

My Comments

18. SUP Conditions Recording.

This SUP approval, inclusive of all conditions of approval, shall be recorded with the Office of the Storey County Recorder to accompany the deed for the real property owned by Thomas and Midge Taormina and applicable to this SUP.

This SUP benefits only Tom.

By recording it along with his deed it will give subsequent owners cause to sue the County if they want to have towers like Tom’s. They will have the restrictive portions of the SUP declared invalid and keep the benefits of the remaining sections. (Maybe they could hire Fred to be their attorney.)

And, as with the last scheduled meeting of the County Commissioners, this one is scheduled for a time that many people who might want to attend, won’t be able to.

It is scheduled for Monday May 21, 2012 at 1 pm, with the Taormina Tower Agreement scheduled to be discussed no earlier than 2 pm, except they have not allowed the public to read the Taormina Tower Agreement.

What are they hiding?

S. May 28, 2012 The Board of Commissioners approves the Settlement Agreement

The County Commissioners meeting was Monday May 21.

The Agenda for the meeting is here.

The item for Tom’s Towers is:

THE FOLLOWING ITEM WILL BE HEARD AT 2:00 P.M.

The Information Packet for the meeting was released on 5/16/2012. (Click here).

The document in the Information Packet for Tom’s Towers is called Storey County Commissioners' Office and Planning Division Staff Recommendation Summary.

I stripped it out of the Information Packet since the Information Packet file is 4.3 Mbytes long. (Click here)

Since the Information Packet is a pure-image file (which is why it is so big) I used OCR to convert the Taormina document to html. (Click here)

I sent my comments to the County Commissioners on May 20. (Click here)

The attachments to my email are:

1. My email to the Commissioners on April 18, 2012 (click here) where I formally asked for a copy of the Taormina Tower Agreement and reminded them that:

B. In particular, as per NRS 241.020(5) and NRS 241.020(6) please send me (via email) a copy of the Taormina Settlement Agreement as soon as it is provided to the members of the Storey County Commission.

2. A section from FAA ADVISORY CIRCULAR AC 70/7460-1K Obstruction Marking and Lighting. (Click here)

3. My email to Pat Whitten on 5/17/2012 where I asked for a copy of the County's contract with the Nevada Public Agency Insurance Pool. (Click here) My email has been ignored.

I have previously discussed the problem that the Storey County Commissioners' Office and Planning Division Staff Recommendation Summary is not the Settlement Agreement: My Comments & Things #16 – Something is Very Wrong Here. (Click Here)

As you will hear from the meeting the County Commissioners and DA Maddox steam-rollered over me.

After the meeting a member of the Yahoo Group for my community asked what happened at the meeting.

> So I'm curious, no one "Jed included" has posted anything about the towers and the outcome of the meeting on Monday. . Anyone know what happened or did I miss the boat??

This is what I posted:

Someone here ask for me?

Usually people send me a private email and tell me to go away.

This is what happened at the May 21 County Commissioners meeting.

1. The Commissioners approved the SUP for the cell phone tower, subject to the condition that the cell tower company have signed contracts from AT&T and Verizon.

John Schmoker advised the Commissioners that there was a better location for a cell tower than Saddleback. He was ignored. No one else spoke to the issue. (Where were all of you guys?)

2. The Commissioners violated Nevada's Open Meeting Law by approving the Taormina Tower Agreement without providing a copy of it to the public. They denied that a Tower Agreement existed other than the Staff Recommendations Summary. They also refused to say what the Staff Recommendations Summary is a Summary of.

Gary Schmidt, who is a candidate for Nevada State Assembly District 39 (which we are now in) is an expert on the Open Meeting Law and explained it to the Commissioners. He was ignored.

Several residents spoke against the Tower Agreement. No one spoke for it. Everyone was ignored.

Tom was not present at the meeting. Neither was Fred.

The Commissioners' approval of the unseen Tower Agreement was unanimous.

3. Bill Maddox admitted that he screwed up at the June 7, 2011 Commissioners Meeting by not advising the Commissioners that they needed to give a reason to deny Taormina's application for a SUP.

He promised to be tougher in the future. In the future when Kat asks questions he will tell her to sit down.

4. I will let Squidly speak on the Library thing.

5. After the vote on the Tower Agreement I left the meeting and ended up at the Mandarin Garden where I got some very nice Mongolian Beef. It's especially good with fried rice and a little mustard and served in a small boat. Don't miss it.

Jed on Empire

I asked the County Clerk’s Office for a copy of the recording of the meeting and they had it ready for me the next day. (Thank you, guys.)

The meetings are recorded on video.

There is a sound system in the courtroom to record what people say. Each Commissioner and those who sit at the Commissioners’ table have a microphone in front of each of them.

There is another microphone at the lectern used by members of the public to make comments.

However, sometimes people don’t use it. They might stand near the podium instead of in front of it. And sometimes people speak from their seats. Although the Commissioners Meetings are run in an orderly fashion, they are also generally interactive as long as people behave themselves. (In case they don’t, Sheriff Antinoro will remind them to behave. He is also there to give the regular report on the Sheriff’s Department.)

However, although the Courtroom is a grand old courtroom, the acoustics are terrible. Using a general microphone to mic the audience would not work. So when people speak from their seats the microphone system picks them up at very low levels and with considerable reverberation.

The video came in three files in Windows Media Video format.

Since I am only interested in the audio and I want it to be as audible as possible this is what I did:

1. I stripped the audio from the wmv files.

2. I normalized the levels.

3. I manually adjusted the levels of different segments. (The levels from the audience lectern are too hot, and the levels when people speak from their seats is too low.)

4. I used a general compression function to compress the audio a little.

5. I converted the files to mp3 format. (You can play them in your computer and in an mp3 player.)

Therefore, although I am posting the video files along with the processed audio files, if you want to hear what was said, listen to the processed audio files.

Streaming audio files from a Web site is difficult and has to account for different browsers and even different operating systems, so I’m not doing that.

In order to play the files, you need to download them and play them with the player that you use for these kinds of files.

In Firefox you download a file by:

1. Right-click on the filename.

2. Select “Save Link As”. If you have configured Firefox to ask you where to download files, then it will do that. If you have left it with the default option it will download the file to the default location. It will also list the file in the download window.

3. After you have downloaded the file double-click on it (wherever it is) and your system’s default player will play it. (If you are using Windows it will probably use Windows Media Player.) Usually, the easiest way to play it is by double-clicking on the file in the Download Window.

In Microsoft Internet Explorer, you download the file by right-clicking and selecting “Save Target As”. Then MSIE will ask you whether you want to Open (the file), Open the Folder, or Cancel (Don’t open anything).

File 1 contains the part of the meeting that started at 1 pm. It starts with public comments and then goes on to the discussion of the Vista Towers Application for a Special Use Permit for a Cell Phone Tower. (It is approved.) Then, on to the budget. As part of its budget slashing actions (Storey Count is broke, just like everyone else) they decide to close the County’s only library despite impassioned pleas not to.

File 2 (which starts at 2 pm) is devoted entirely to the discussion of the Taormina Tower Agreement. However, it ends with a short recess. The actual vote is in File 3.

File 3 starts with the Commissioner’s vote to approve the Taormina Tower Agreement. Then it continues with other matters until DA Maddox asks the Commissioners to revisit to the Taormina Tower Agreement vote to fix some problems with it.

I have made a file (File 2a) which contains all of the original File 2 plus the segments from File 3 that pertain to the Tower Agreement. This way, if you are only interested in the Tower Agreement you only have to download and play one file.

The following are my index and my characterizations. Please listen to the actual recording.

File 1 – 46.9 Mbytes 51:19 (Remember, right-click on it to download)

Times are referenced to the file time.

00:00:00 Call to Order

00:00:07 Pledge of Allegiance

00:01:30 Public Comment – Gunther Prosser, resident of the Lockwood River District. The County is expanding their park (an expansion they don’t want) but is not maintaining the existing park (which they do want). The County pushed on.

00:04:46 Vista Towers Application for a Special Use Permit for a Cell Phone Tower was removed from the Consent Agenda.

00:05:42 Items on Consent Agenda approved

00:05:50 Vista Towers Application for a Special Use Permit for a Cell Phone Tower.

00:05:52 Austin Osborne, Storey County Senior Planner

00:15:46 John Schmoker, Highlands resident – There is a better location for the cell phone tower.

00:17:59 Question from Commissioners

00:18:00 Commissioners approve SUP with the provision that Vista Towers have at least two contacts with carriers.

00:19:25 Budget Hearings

00:19:25 Pat Whitten, County Manager

00:28:17 Public Comments – Patrick Flanagan – Please don’t close the Library

00:32:32 Public Comments – Mark Joseph Philips – Please don’t close the Library

00:35:59 Public Comments – Gary Schmidt (Candidate for Nevada State Assembly) – Please don’t close the Library

00:38:10 Commissioners discuss the Library in view of the County’s other priorities. They decide that Libraries are obsolete, anyway, so they later vote to defund it

00:41:38 Pat Whitten, County Manager – More Budget Matters

00:51:19 Recess until 2 pm

File 2a – 40.5 Mbytes 44:16 (Remember, right-click on it to download)

00:00:00 Call Back to Order

00:00:14 Taormina Tower Agreement

00:00:41 Brent Kolvet, attorney hired by the insurance carrier to defend the County in Tom’s lawsuit.

00:02:40 Public Comments – Jed Margolin, Highlands Resident – You are violating Nevada’s Open Meeting law because you have not made the Tower Agreement available to the Public.

00:06:05 Public Comments – Kathleen Storemeon, Highlands resident – Tom and Midge knowingly violated the Law. The County has spent money on this case but not one cent in prosecuting the guilty. Law-abiding Tax-paying citizens have been ignored. A commission should be set up to investigate the County’s actions. She requested a 60 day delay, so that “Property owners could arrange legal counsel.” That request was denied.

00:08:19:00 Public Comments – Buddy Morton, Highlands resident – Are these towers being taxed? He also requested a 60 day delay so property owners can arrange their own legal counsel. He wanted a list of parties involved in the negotiation. He also wanted the original documentation provided for the towers looked at again because it appears that they were signed off by an out-of-state engineer. Tom broke the law, the towers were erected illegally, so how can the Commissioners let him keep them?

00:12:14 Public Comments – Cynthia Kennedy –

The County, especially the Building Department, admits that it made mistakes. When IRS employees give you incorrect information about the tax law, too bad for you. Why is this any different?

Why did Tom get almost everything he wanted?

When the Commissioners denied Tom’s application for a Special Use Permit they failed to give a reason, and it really hurt the County in this lawsuit. At that meeting, why didn’t Judge Maddox (DA Maddox) lean over and advise the Commissioners to give a reason?

Tom was allowed to be his own expert witness on ham radio and towers in this case. Who was the County’s expert witness on ham radio and towers in this case?

The company applying for a SUP to put in a Cell Phone Tower has jumped through hoops to work with the County and the Homeowners Association. Why is Tom being given carte blanche to do what he wants?

00:15:48 Public Comments – Gary Schmidt (Candidate for Nevada State Assembly) is an expert on the Open Meeting Law, and explains the Law to the Commissioners.

00:18:12 Brent Kolvet continues to assert the fiction that the Staff Recommendations Summary is the Taormina Tower Agreement. Chairman Kershaw asked Brent to comment on Mr. Schmidt’s statement about the Open Meeting Law. Brent said,

“ Yah, ah, like Mr. Schmidt I’m familiar with that section as well, and what it requires is that if there is a document that you’re voting on it be presented at the hearing. There is no document other than the document which is contained in your packet which is the Storey County Commission Staff Recommendations Summary. The conditions that are outlined in that Summary are the conditions that were negotiated and agreed to. The condition of the agreement is that if this Special Use Permit is approved then the lawsuit goes away. If it doesn’t get approved today, then the lawsuit continues. There’s nothing secret about the rest of the settlement. Those are the terms. These eighteen conditions that are listed in your Summary are the conditions of the Settlement.

My comments here:

1. “The condition of the agreement is that if this Special Use Permit is approved then the lawsuit goes away.”

That’s not in the Staff Summary, so it’s not the Settlement Agreement.

2. “There’s nothing secret about the rest of the settlement.”

Even if the rest of the Settlement Agreement isn’t secret, it must mean that somewhere there is the rest of the Settlement Agreement. Then even if the Summary is the Settlement Agreement, it’s not the complete Settlement Agreement. Why isn’t the Settlement Agreement complete? The Commissioners are not voting on the complete Settlement.

3. “If it doesn’t get approved today, then the lawsuit continues.”

Why does it have to be approved today? Wouldn’t that be spelled out in the Settlement Agreement? This revelation was a surprise. What other surprises (secrets) are in the Settlement Agreement which, since it is not written down, is an oral agreement, not a written agreement. If Brent hasn’t learned that Tom embellishes his memory of conversations and draw preposterous inferences from them, then he hasn’t read the Record of this case. What else will Tom decide was in the (oral) Settlement Agreement?

Isn’t it the Court’s intent that the Settlement Agreement be completely written down?

Note that Brent answered Mr. Schmidt, not me. I asked “What is the Staff Summary a Summary of?” I guess we will never know.

00:19:30 Chairman Kershaw says what he really thinks about Tom. It’s honest. It’s refreshing. It’s way too late.

00:20:25 Chairman Kershaw ends with, “Going on from here, if there’s something from the District Attorney that you feel that we need to do differently or…”

DA Maddox says, emphatically, “No, no, there is no meeting violation, because this is the Agreement. And the only other document that’ll be prepared as a result of this, if this is approved, if the Special Use Permit is approved, is I will make a memorandum of these conditions which will be filed with the County Recorder, and basically the memorandum will be exactly what’s in Subsection 4. It will just be a memorandum that sets forth all these conditions and it will be filed with the County Recorder, so there is no violation of the Open Meeting Law.”

Then he says who was at the Settlement Conference, which we already know from the Court Record.

00:21:55 Pat Whitten promises he will look into the tax issue brought up by Buddy.

00:22:35 Commissioner Hess also says what he really thinks about Tom. He is puzzled why Tom is being allowed to get away with this, but he will do what Brent (the attorney hired by the insurance carrier) advises the County to do.

00:23:27 Cynthia Kennedy (from the audience) asks about the section regarding the value of Tom’s station in emergencies.

00:24:42 Pat Whitten gives a lame answer.

00:26:08 Katherine Storemeon (from the audience) asks how Brent was chosen and asks, again, if the citizens will be given time to get their own attorney.

00:28:25 DA Maddox makes the extraordinary admission that, at the July meeting when the Commissioners denied Tom’s Application for Special Use permit, he should have stopped the Commission and made them make findings. He said they have made changes so it won’t happen again, and that he will be tough about it.

He then says he could not have represented the County in this issue because the insurance carrier had that right. He did not address Katherine’s question of how Brent was selected.

Then he promises that, with his new policy of being tough, he will be tough about telling people to sit down.

You really should listen to this part.

00:32:30 Buddy Morton asks Brent if he saw his timeline. (I asked Brent if he has seen the Towers.) Brent says that he read the entire Record, and yes, he has seen the towers.

00:33:55 Jed Margolin (that’s me) asks again why the Staff Recommendations Summary is called a Summary, and what is it a Summary of? They won’t answer and say I am simply engaging in argument.

I tell them that they have no way of enforcing the section that says if Tom and Midge leave they have to take the towers down.

Brent gives a lame answer.

I manage to make the statement:

The fact is that Tom has figured out the System.

Sue the County, the County settles, and you get most of what you want.

And he can do this as many times as he wants.

He will be able to get anything he wants from the County.

So, how long before he gets to put up a 1000’ tower?

A 1000’ tower will require a high intensity white flashing light on the top,

and will be visible from Reno, maybe even downtown Reno.

And then everyone will know that Tom is the King of Storey County.

Brent gives another lame answer.

00:37:20 The Commission breaks for five minutes

00:37:28 The Commission reconvenes. Chairman Kershaw asks for any additional discussion or comments from the Commissioners or Staff, and for a Motion.

There is some discussion and some comments.

Then, after talking about Tom, Commissioner Hess makes the Motion to approve “his SUP.” Commissioner Sjovangen seconds the motion.

00:39:30 The Commission votes unanimously to approve the Settlement Agreement.

00:40:19 I ask from the audience, “Excuse me, what is it that you just approved?”

I keep getting lame answers and I keep asking the question, “What is it that you just approved?”

Finally,

Me: You approved the Settlement Agreement?

Chairman Kershaw: Yes, that’s what I just said.”

00:41:00 Pat Whitten continues. (File 3 at 00:03:33)

00:41:10 DA Maddox interrupts during a discussion of something else to ask the Commissioners to make the Tower Agreement Motion clearer(?) and vote on it again. They do that. (File 3 at 00:19:57)

And they approve it again, only this time they make it clear that they are approving the Special Use Permit. It’s a restatement of Staff Recommendation Summary Section III Staff Recommendation Proposed Motion.

Based on findings and compliance with all conditions and stipulations imposed in accordance with the Settlement Agreement between the SUP Applicant and Storey County, the Board of Storey County Commissioners approves SUP Application No. 2011-010 and include in that motion all conditions of the SUP listed in Section IV of this summary report.

00:22:35 The Board adjourns and reconvenes as the NRS 473 Storey County Fire Protection District Board.

File 3 – 39.2 Mbytes 42:52 (Remember, right-click on it to download)

[I appended this part to File 2a]

00:00:00 The Commission reconvenes. Chairman Kershaw asks for any additional discussion or comments from the Commissioners or Staff, and for a Motion.

There is some discussion and some comments.

Then, after talking about Tom, Commissioner Hess makes the Motion to approve “his SUP.” Commissioner Sjovangen seconds the motion.

00:02:03 The Commission votes unanimously to approve the Settlement Agreement.

00:02:52 I ask from the audience, “Excuse me, what is it that you just approved?”

I keep getting lame answers and I keep asking the question, “What is it that you just approved?”

Me to Chairman Kershaw: You approved the Settlement Agreement?

Chairman Kershaw: Yes, that’s what I just said.”

00:03:33 Pat Whitten continues with the budget.

00:19:57 DA Maddox interrupts during a discussion of something else to ask the Commissioners to make the Motion clearer(?) and vote on it again. They do that.

00:22:31 And they approve it again, only this time they make it clear that they are approving the Special Use Permit. It’s a restatement of Staff Recommendation Summary Section III Staff Recommendation Proposed Motion.

00:22:35 The Board adjourns and reconvenes as the NRS 473 Storey County Fire Protection District Board.

00:22:50 Pat Whitten continues.

00:24:40 The Board adjourns and reconvenes as the NRS 474 Storey County Fire Protection District Board.

00:24:51 Pat Whitten continues.

00:33:58 The Board adjourns and reconvenes as the Storey County Water and Sewer Board.

00:34:10 Pat Whitten continues.

00:36:58 The Board adjourns and reconvenes as the Storey County Board of Commissioners.

00:39:20 Chairman Kershaw relates a meeting with Nevada Nako(?) to discuss Storey County getting its fair share of the sales tax that Amazon (whose distribution center is in Storey County) will be collecting on its Internet sales. (Most of Storey County has Reno zip codes for mailing addresses. As a result, sales tax collected in these areas goes to Washoe County. Storey County has been asking the Post Office to assign zip codes to Storey County for years but they refuse.)

00:40:28 The Board adjourns.

These are the raw video files with the original audio, some of which is not very audible.

Video File 1 (wmv, 71 MBytes): 12h59m9s.wmv

Video File 2 (wmv, 51.5 Mbytes): 14h04m21s.wmv

Video File 3 (wmv, 59 Mbytes): 15h00m24s.wmv

So, what do you think of this?

Please send your comments to the following:

Storey County Commissioners: commissioners@storeycounty.org

Bob Kershaw: bkershaw@storeycounty.org

Bill Sjovangen: bsjovangen@storeycounty.org

Greg Hess: ghess@storeycounty.org

Storey County District Attorney: Bill Maddox:

scda@storeycounty.org

Storey County Executive: Pat Whitten

pwhitten@storeycounty.org

ARRL President Kay Craigie

n3kn@arrl.org

n3kn@verizon.net

June 5, 2012

I went to the County Commissioners Meeting today to witness their approval of the minutes for the infamous May 21 meeting.

For the Agenda click here.

For the Information Packet for the meeting click here.

I separated out the parts of the minutes that pertain to the Taormina Settlement Agreement and used OCR to make an html file. Click here.

How did the meeting go?

Here is the start of the Agenda for the June 5 meeting:

*CALL TO ORDER AT 2:00 P.M.

PLEDGE OF ALLEGIANCE

PUBLIC COMMENT

CONSENT AGENDA

(All matters listed under the consent agenda are considered routine, and may be acted upon by the Board of County Commissioners with one action, and without an extensive hearing. Any member of the Board or any citizen may request that an item be taken from the consent agenda, discussed, and acted upon separately during this meeting. The Commission Chair reserves the right to limit the time allotted for each individual to speak. )

*Approval of Agenda for June 5, 2012

*Approval of Minutes for May 21, 2012

*Correspondence –

*Approval of Claims –

*Approval of Maps –

*Approval of Assessor corrections to the Tax Roll –

* Approval of Treasurer’s Report –

*Approval of Planning Commission Minutes

* Approve New and/or Revised County Policies –

*Approve the First Judicial District Court proposed budget for fiscal year 2013 for $27,756 for an estimated reimbursement from the State Child Support Enforcement Program in the amount of $24,074 and the proposed budget for fiscal year 2014 for $28,336 for an estimated reimbursement from the State Child Enforcement Program in the amount of $24,605 to the Carson City General Fund. Storey County Commissioner and the Carson City Board of Supervisors must approve the proposed budgets prior to the State Child Support Enforcement Program reimburses for services.

*LICENSING BOARD:

FIRST READINGS:

1. SILVER DOLLAR MINE – General / 11 North C Street VC

2. J&J POOL SERVICE – Home Business / 3650 Palisade Road ~ VCH

END OF CONSENT AGENDA

Note that the approval of the minutes of the May 21 meeting are part of the Consent Agenda, and that the Consent Agenda takes place after Public Comment.

I have previously mentioned that the acoustics in the Courtroom are poor. Today was worse because the PA system was turned up just barely below the point to cause howling feedback. As a result, it was ringing slightly making it even more difficult to understand what the Commissioners were saying.

I could not clearly hear the part where the Commissioners presumably approved the Consent Agenda. Then they quickly moved on to the next item, so I waited to the end of the meeting to ask if they would state for the record that they had, indeed, approved the minutes of the May 21 meeting.

At the end of the meeting when I tried to ask the question I was shut down by Chairman Kershaw, who then adjourned the meeting.

I went up to him to explain why I needed to ask the Commissioners if they had approved the minutes of the May 21 meeting.

He said I should have asked the question during Public Comment.

I pointed out that Public Comment happened before the Consent Agenda containing approval of the minutes, and therefore I had no way of knowing that I would have to ask the question.

He said that the situation had not come up before.

That is when I realized that there is no way for Commissioners to be so determinedly stupid unless they are corrupt.

Why did I want to witness the Commissioners’ approval of the minutes of the May 21 meeting?

At the May 21 meeting I promised the Commissioners that if they approved the Taormina Settlement Agreement at the meeting I would file a complaint with the Office of the Attorney General of Nevada for their violation of Nevada’s Open Meeting Law because they had failed to provide a copy of the Settlement Agreement to the public.

They approved the Settlement Agreement at the meeting without providing a copy of it to the public so, on May 30, I kept my promise.

For the complaint I filed with the Office of the Attorney General of Nevada click here.

I included a DVD containing the video and audio files of the meeting, which I have already posted here.

The Office of the Attorney General received the package the next day. For the USPS Delivery Confirmation click here.

In my complaint I also asked the Attorney General to investigate malfeasance and possible criminal misconduct by Storey County officials. My experience today confirms that I was right to do so.

Now we wait.

June 20, 2012

While we are waiting for the Office of the Attorney General of Nevada to investigate my complaint against the Board of Commissioners’ actions, the parties in the case filed a document with the Court yesterday.

[Both Parties] Joint Status Report

doc030.pdf

COMES NOW the parties and submit this Joint Status Report to the Court. Following the settlement conference which was held on April 16, 2012, the Storey County Commission approved the special use permit for the construction and modification of antenna support structures pursuant to the agreement of the parties reached at said settlement conference. Subsequently, the parties have been engaged in the process of finalizing the settlement documents including a Release of All Claims and Stipulation for Dismissal of the pending lawsuit before this Court. The parties have agreed to the language of the documents which are in the process of being finalized. Once the documents have been signed, the necessary pleading will be filed with this Court. The parties anticipate that this should be accomplished within the next two weeks.

RESPECTFULLY SUBMITTED this 19^th day of June, 2012.

{Emphasis added}

The Docket Report entry for April 17 said (click here):

The terms of the settlement as outlined on the record are subject to approval by the Storey County Commission at a duly noticed public meeting. The parties have a binding settlement agreement.

The Agenda for the May 21 contained the item (click here):

Possible approval of settlement agreement between Thomas & Midge Taormina and Storey County regarding their application and determination of Special Use Permit 2011-010 for purposes of allowing, constructing and/or limiting multiple amateur radio antenna support structures with heights in excess of 45 feet on their property …

At the May 21 meeting, after they approved the SUP I asked Chairman Kershaw what they had approved. He was evasive but finally equated the SUP with the Settlement Agreement. (Later, at the request of DA Maddox they changed the approval to say only the SUP.)

During the meeting Kolvet admitted there was at least one other part of the settlement agreement that was not in the SUP, notably the statement that both sides would bear their own costs. (Besides which, the SUP wasn’t signed by anyone, which means it is not binding on Taormina.)

Yet, the Settlement Agreement is still not done.

Is that the hang up, that both sides will bear their own costs, or is there more in the Settlement Agreement that they are hiding?

Note that:

1. The Court said the parties had a binding agreement and that the terms of the Settlement Agreement as outlined on the record are subject to approval by the Storey County Commission at a duly noticed public meeting.

2. The approval of the Settlement Agreement was on the agenda for the May 21 meeting.

3. At the May 21 meeting the Commissioners approved something that they initially said was the Settlement Agreement. Then they said it was just the SUP.

4. Now they say that the Settlement Agreement is not done.

There must be a serious hang up for it not to be done by now.

Why did the Commissioners approve the SUP as part of an agreement that hadn’t been agreed to at that point? They gave Taormina almost everything he wanted (and more). In the process they gave away whatever bargaining position they might have had.

What more is Taorminia holding out for?

Also note that the Court had ordered, “Settlement documents are due by 6/18/2012.”

They failed to file the settlement documents by 6/18/2010. They failed to file anything by 6/18/2012. And what they filed on 6/19/2012 was the excuse that the Settlement Agreement was done yet.

When the Settlement Agreement finally is done, doesn’t it require approval by the Board of Commissioners at a properly noticed meeting?

And now we have this:

May 17, 2012 – I sent an email to Pat Whitten requesting a copy of the contract with the Nevada Public Agency Insurance Pool.

June 4, 2012 – I repeated my request.

June 13 , 2012 – I repeated my request again and noted that the approval of the new contract was on the Board of Commissioners Agenda for the June 19 meeting, and I was requested a copy of that one too.

June 19, 2012 – The Board of Commissioners approved the new contract with the Nevada Public Agency Insurance Pool.

As of today, I have not received either contract.

The Information Packet for the June 19 meeting contains a Summary of the contract, not the actual contract. Thus, the Commissioners have violated the Open Meeting Law again.

I expect there will be more about this later.

June 22, 2012

[Court] Minute Order in Chambers

doc031.pdf

MINUTE ORDER IN CHAMBERS:

The court has reviewed the parties’ joint status report (#30). Based upon the report, a stipulation and order to dismiss shall be filed on or before Tuesday, July 3, 2012.

June 25, 2012

I received a response from the Office of the Attorney General of Nevada to my complaint that Storey County Board of Commissioners had violated the Open Meeting law by refusing to give me a copy of the Settlement Agreement that they approved at the May 21 meeting.

They are going to investigate.

Click here.

I filed a second Complaint that the Storey County Board of Commissioners violated the Open Meeting Law by ignoring my request for a copy of the contract with the Nevada Public Agency Insurance Pool, a contract that they approved at their June 7 meeting.

For that complaint click here.

June 29, 2012

Two documents appeared in the Docket Report yesterday. (For the Docket Report click here.)

[Both Parties] {no title}

doc032.pdf Stipulation and Order for Dismissal with Prejudice

[Both Parties] {no title}

doc033.pdf Proposed Order

doc033-1.pdf Exhibit (SUP approved by Board of Commissioners on May 21)

Here is the timeline:

April 16, 2012 – The Court says that there is a binding Settlement Agreement that is subject to the approval of the Board of Commissioner and that a stipulation and order for dismissal shall be submitted by Monday, June 18, 2012. (Document #29, no image, just the Docket Report)

May 21, 2012 – The Board of Commissioners approves the SUP. At the meeting they say that the Settlement Agreement will include a stipulation saying that both sides will bear their own costs and attorneys’ fees.

June 19, 2012 - The Parties file a Joint Status Report saying the Settlement Agreement is not ready, and that they will file the finished Settlement Agreement within two weeks. (Document 30) {Note that they missed the Court’s deadline by a day. Were they playing a Game of Chicken?}

June 20, 2012 – The Court says the stipulation and order to dismiss is due on or before Tuesday, July 3, 2012. (Document 31)

June 28, 2012 – The Parties file the stipulation and order to dismiss along with the SUP, along with the Proposed Order. (Document 32, Document 33, Document 33-1)

If we count the May 21 meeting as the starting period for the Parties to craft the stipulation and order to dismiss, it took them approximately 38 days to write:

STIPULATION AND ORDER FOR DISMISSAL WITH PREJUDICE

COME NOW, Plaintiffs, THOMAS S. TAORMINA and MIDGE A. TAORMINA, and Defendant, STOREY COUNTY, by and through their respective counsel, and pursuant to Rule 41 of the Federal Rules of Civil Procedure, hereby stipulate that the above-entitled matter may be dismissed with prejudice in its entirety and each party to bear their own costs and attorney’s fees.

IT IS FURTHER STIPULATED that this Court maintain jurisdiction of this matter to enforce the provisions of the settlement reached by the parties which is inclusive of the conditions of the special use permit approved by the Storey County Board of County Commissioners on May 21, 2012 (Special Use Permit No. 2011-010). The conditions approved by the Storey County Board of County Commissioners and agreed to by THOMAS S. TAORMTNA and MIDGE A. TAORM1NA are attached hereto as Exhibit 1.

Why did it take Bryan, Fred, and Brent 38 days to write this?

Here are some possibilities:

1. It took them 38 days to look up Rule 41 of the Federal Rules of Civil Procedure? (For Rule 41 click here.)

2. It took them 38 days to agree that the matter would be dismissed with prejudice (meaning that the matter cannot be litigated again)?

3. It took them 38 days to agree that both Parties would bear their own costs and attorneys’ fee?

4. It took them 38 days to agree that the Court would maintain jurisdiction of this matter to enforce the provisions of the settlement which includes the SUP?

Or, maybe they are just slow.

Today, the Court signed-off on the Order.

[Court] {no title}

doc034.pdf Stipulation and Order for Dismissal with Prejudice

Today, in late afternoon, the County sent me a copy of the 2011 contract with the Nevada Public Agency Insurance Pool. Click here.

That just leaves the 2012 contract.

This is what caught my attention in the 2011 contract. I expect that attorneys and accountants would find other parts of interest to them.

I have emphasized the parts that caught my attention.

PDF Page 2:

Coverage	Limit per Named Assured	Annual Aggregate Limit per Named Assured
Per Event	$10,000,000	$10,000,000
All Sublimits are a part of and not in addition to the Limits of Liability. Liability Sublimits:
Criminal Defense Fees and Costs (Section VI, part C, item 4)	$50,000
Defense for Regulatory Agency Actions (Section VI, part C, item 16)	$50,000
Weed Spray Property Damage (Section IV, item 3.(B) (2) (ix))	$250,000
Emergency Response to Pollution (Section IV, item 3.(B) (2) (v))	$1,000,000
Sexual Abuse (Section VI, part C, item 19)	$2,500,000	2,500,000

PDF Page 7:

2. LIABILITY CLAIMS

B. Cooperation – The POOL may at its discretion defend an Assured against any claim for damages. Where the POOL has exercised its discretion to defend an Assured, the POOL has the sole right to investigate, defend or settle any claim against an Assured for damages. The Assured shall cooperate with POOL, its claims representatives and investigators, and attorneys assigned by POOL to represent the Assured, and if requested, attend hearings and trials, assist in securing and obtaining evidence, and obtaining the attendance of witnesses. The Assured shall not admit to any liability, assume any obligation, voluntarily make any payment or incur any expense other than first aid to others at the time of an accident. The Assured agrees to comply with all terms and conditions in all sections of this Coverage Form.

1. If this case is considered a Defense for Regulatory Agency Actions (Section VI, part C, item 16) then the insurance coverage was only $50,000.

2. By filing a claim for the lawsuit the County gave away its sovereignty to the insurance company.

I would like to see a clause in the contract stating that if, by using its authority to settle a lawsuit, the insurance company causes other damages (“collateral damages”), then there shall be no limit to the insurance company’s liability for those collateral damages.

Also, today, DA Maddox sent me a document called Final Signed Release of All Claims. Click here.

I used OCR to convert it to an html file. Click here.

The Final Signed Release of All Claims wasn’t filed with the Court. I am trying to find out why.

T. October 8, 2012 Storey County (and Nevada) Ethics

I have previously discussed the Complaints I filed with the Office of the Attorney General of Nevada on May 30, 2012.

1. At the May 21, 2012 meeting of the Storey County Board of Commissioners they approved the Taormina Tower Agreement without providing a copy of the agreement to the public.

For the complaint I filed with the Office of the Attorney General of Nevada click here.

I included a DVD containing the video and audio files of the meeting, which I have already posted. click here.

In my complaint I also asked the Attorney General to investigate malfeasance and possible criminal misconduct by Storey County officials.

2. At the June 7, 2012 meeting of the Storey County Board of Commissioners they approved the 2012 contract with the Nevada Public Agency Insurance Pool without providing a copy of the contract to the public.

For that complaint click here.

The Office of the Attorney General of Nevada combined my complaints and, in a letter dated September 4, 2012, I received a response. Click here.

I converted it to html to make it text searchable. For html version click here.

This is what they said:

A. The opinion of the Office of the Attorney General of Nevada was that the Board of Commissioners had not violated the Open Meeting Law by approving the Taormina Tower Agreement without providing a copy of the full Agreement to the Public because the Board of Commissioners did not have a copy of the full Agreement.

This complaint alleges BOCC failed to provide you with a written settlement agreement between Storey County and Midge A. Taormina in case #3:09-cv-00021- LRH-VPC. The agenda item for May 21, 2012 BOCC meeting stated:

*DISCUSSION/POSSIBLE ACTION: Possible approval of settlement agreement between Thomas &

Midge Taormina and Storey County regarding their application and determination of Special Use Permit

2011-010 for purposes of allowing, constructing and/or limiting multiple amateur radio antenna support

structures with heights in excess of 45 feet on their property located at 370 Panamint Road, Highland

Ranches, Storey County, Nevada. Possible action may also provide for allowing, constructing and/or

limiting similar support structures of 45 feet or less and may alter the earlier Board of Commissioners

determination made on June 7, 2011.

Although already discussed above, we reiterate once more that the OML only requires that documents actually provided to the public body be made available to the public. The basis for your OML complaint is that the Taormina Staff Recommendation summary is not a settlement agreement. Nevertheless it was the only document provided to the BOCC, signed or unsigned. The OML cannot compel the BOCC to provide a signed written settlement agreement if it was not already in existence and given to the elected members of the BOCC as supporting materials for a public meeting.

BOCC's response through the District Attorney explains that "no other writing of the agreement between Storey County and Taormina was prepared [for the May 21st BOCC meeting] because if the full Story County Commission had rejected the agreement contained in the... Staff recommendation summary, there would have been no agreement."

No other writing, signed or unsigned, existed regarding the Taormina settlement agreement on May 21, 2012.

B. The opinion of the Office of the Attorney General of Nevada was that the Board of Commissioners had not violated the Open Meeting Law by approving the contract with the Nevada Public Agency Insurance Pool without providing a copy of the contract to the Public because the Board of Commissioners did not have a copy of the contract.

In this complaint you have alleged the BOCC refused to give you a copy of a document which was discussed and acted upon at its June 19, 2012 public meeting. Specifically you asked for a copy of an insurance contract for this agenda item: "Acceptance of renewal proposal from the Nevada Public Agency Insurance Pool (POOL) and approval for payment from fiscal year 2012-2013". Review of your email requests to County Manager Pat Whitten and responses from Mr. Whitten, revealed that you had been requesting a contract between POOL/PACT and Storey County. [FN2]

The OML requires that any supporting materials provided to members of a public body must be made

available to the public at the same time the members receive them. NRS 241.020(6)(a). BOCC complied

with the OML requirement.

The BOCC provided this office with a copy of the June 19, 2012 meeting packet (NRS 241.020(6)(a)

supporting materials). The only document included in the packet for BOCC members and available to the public was a document entitled "POOL insurance renewal proposal" (pps. 91-98 of 116 page packet). The packet, including this document, was made available on June 16, 2012 online at the Storey County.org/clerk webpage to you and the public at the same time the BOCC received theirs. The BOCC

considered only the renewal proposal—not a contract. No OML violation occurred.

The Open Meeting Law requires that governing bodies give copies to the public of documents that they consider during public meetings. The Office of the Attorney General of Nevada has said it is perfectly legal for the Board of Commissioners to circumvent the document requirements of the Open Meeting law by approving documents (like agreements and contracts) that they themselves have not seen. Since they do not have a copy of the documents they do not have to provide the documents to the public.

Technically, it may be legal. Morally, it is corrupt and unethical.

Let’s see what the Nevada Commission on Ethics thinks about it.

I filed my Complaint with the Nevada Commission on Ethics on September 26, 2012. (Click Here)

The appendix is contained in the Complaint, except for a snippet from the recording of the May 21, 2012 meeting of the Storey County Board of Commissioners. It is where the Commissioners approved the “Taormina Tower Agreement.” For an MP3 of the snippet click here.

I received a response from the Nevada Commission on Ethics in a letter dated October 2, 2012.

They blew me off. Click here.

I made an html version to make it text searchable and quotable. For the html version click here.

This is what they said:

RE: Requests for Opinion Nos. 12-55N, 12-56N, 12-57N and 12-58N, filed September 27, 2012, regarding Bob Kershaw, Bill Sjovangen, and Greg Hess, Storey County Commissioners; and Bill Maddox, Storey County District Attorney.

Dear Mr. Margolin:

In accordance with Nevada Administrative Code 281A, I have conferred with the Commission's legal counsel regarding the above-referenced requests for opinion. We have determined that, for the reasons indicated below, the Nevada Commission on Ethics lacks jurisdiction to consider your requests for opinion, and/or you have failed to provide the minimal level of credible evidence required for the Commission to pursue these matters.

For the Commission to have jurisdiction to consider a Request for Opinion ("RFO"), the alleged acts must constitute a violation of Nevada Revised Statutes ("NRS") Chapter 281 A. Your Requests for Opinion Nos. 12-55N, 12-56N, 12-57N and 12-58N, allege acts that do not implicate NRS 281 A.

Additionally, for the Commission to have jurisdiction to consider a RFO, the requester must provide a minimal level of credible evidence supporting the allegations. Your Requests for Opinion fail to include the minimal level of evidence required to support a violation of NRS Chapter 281A.

At this time, based on the above information, the Commission has no authority under NRS 281A.440 to investigate the violations alleged in your Requests for Opinion.

Pursuant to NAC 281A.405(4), you may request a panel of Commissioners to review this determination. Should you wish to pursue this remedy, you must submit a request to the Commission in writing not later than 10 days after your receipt of this notification.

Best wishes,

Caren Cafferata-Jenkins, Esq.

Executive Director

They said that “the Nevada Commission on Ethics lacks jurisdiction to consider your requests for opinion, and/or you have failed to provide the minimal level of credible evidence required for the Commission to pursue these matters.”

Among the evidence that I gave them was the report of the Office of the Attorney General of Nevada as well as the complete recording of the May 21, 2012 Storey County Board of Commissioners.

And the Nevada Commission on Ethics does not consider that credible evidence?

I don’t know about you, but their response makes my BS Detector go off the charts.

The Nevada Commission on Ethics is worthless and should be shut down so Nevada can spend the money on something worthwhile.

How about bringing back the Nevada Consumer Affairs Division? It was shut down in 2009. See http://ag.state.nv.us/org/bcp/cadinfo.html

And Best Wishes to you, too, Ms. Caren Cafferata-Jenkins, Esq., Executive Director of Nevada Commission on Ethics.

October 20, 2012

On October 17 (Wednesday) I called the Nevada Commission on Ethics to ask who the Commission reported to.

The person I talked to said that Ms. Cafferata-Jenkins (the Executive Director) was not available (she was in meetings all day) and tried to help me herself.

She referred me to Nevada NRS.

I told her that I was looking at Nevada NRS and it did not answer my question, which is why I had called the Commission.

She said she could not give me legal advice.

I told her the reason I wanted to know was because Ms. Cafferata-Jenkins’ letter had questioned my credibility and /or the credibility of my evidence and I was greatly offended.

She said would ask Ms. Cafferata-Jenkins to call me.

Ms. Cafferata-Jenkins called me the next day.

Here are the highlights.

She said that she reports to the members of the Ethics Commission. Some of the members of the Commission on Ethics are appointed by the Legislative Commission of the Nevada Legislature and some are appointed by the Governor. Its all in Nevada NRS 281A: http://www.leg.state.nv.us/NRS/NRS-281A.html

The specific section is http://www.leg.state.nv.us/NRS/NRS-281A.html#NRS281ASec200

NRS 281A.200 Creation; appointment, terms and qualifications of members; prohibited activities by members; vacancies.

1. The Commission on Ethics, consisting of eight members, is hereby created.

2. The Legislative Commission shall appoint to the Commission four residents of the State, at least two of whom are former public officers, and at least one of whom must be an attorney licensed to practice law in this State.

3. The Governor shall appoint to the Commission four residents of the State, at least two of whom must be former public officers or public employees, and at least one of whom must be an attorney licensed to practice law in this State.

4. Not more than four members of the Commission may be members of the same political party. Not more than four members may be residents of the same county.

5. None of the members of the Commission may, while the member is serving on the Commission:

(a) Hold another public office;

(b) Be actively involved in the work of any political party or political campaign; or

(c) Communicate directly with a State Legislator or a member of a local legislative body on behalf of someone other than himself or herself or the Commission, for compensation, to influence:

(1) The State Legislator with regard to introducing or voting upon any matter or taking other legislative action; or

(2) The member of the local legislative body with regard to introducing or voting upon any ordinance or resolution, taking other legislative action or voting upon:

(I) The appropriation of public money;

(II) The issuance of a license or permit; or

(III) Any proposed subdivision of land or special exception or variance from zoning regulations.

6. After the initial terms, the terms of the members are 4 years. Any vacancy in the membership must be filled by the appropriate appointing authority for the unexpired term. Each member may serve no more than two consecutive full terms.

(Added to NRS by 1985, 2121; A 1991, 1594; 1999, 2731; 2009, 1048)—(Substituted in revision for NRS 281.455)

The practical result is that the Nevada Commission on Ethics doesn’t report to anyone.

We then talked about her letter.

I told her I was offended by her letter which questioned my credibility and/or the credibility of my evidence.

I asked her if she thought I had faked the letter from the Office of the Attorney General of Nevada and/or had faked the recording of the Storey County Board of Commissioners.

She said that she had not accused me of that and that the term “credible evidence” meant “credible evidence” as used in NRS 281A.

I don’t see the phrase “credible evidence” in NRS 281A, just the term “evidence.”

I think her use of the phrase “credible evidence” was simply a poor choice of words.

---------------------------

In related news, in the coming election two of the three County Commissioners’ seats are up for grabs. Kershaw and Hess are term-limited out so they are not running. (Storey County is a small county with a population about 4,000 so we can only afford three County Commissioners.)

The candidates for District 3 are Lance Gilman (yes, that Lance Gilman) and Casey Conley.

The candidates for District 1 are Marshall McBride and Tom Purkey.

There was Candidates’ Night in the Highlands on Friday October 12, put on by the Virginia City News. http://www.virginiacitynews.com

My question to the candidates for Commissioner (all questions were required to be submitted in writing) ended with:

Will you pledge that, if you are elected County Commissioner, you will amend the County Charter to add words to the effect that:

1. No commission or board shall approve an Agreement or Contract unless the full Agreement or Contract is first reduced to writing and provided to the Public at least five days before the Agreement or Contract is considered for approval.

2. Any Agreement or Contract approved in violation of Paragraph 1 shall be null and void.

Gilman said, "No."

Does Gilman run his own businesses that way?

Does he sign contracts without knowing what is in them?

If he does, then he is not as good a businessman as he claims to be.

I won't be voting for Gilman.

I forget what Conley said, but at least he is not Gilman.

McBride also said, "No."

I won't be voting for McBride, either.

Purkey said he would consider it because he is in favor of having an open government. I'll vote for Purkey.

Where does that leave me?

In my conversation with Ms. Cafferata-Jenkins she suggested I contact my Nevada legislators.

I’ll do that.

U. April 28, 2013 – Taormina Fallout #1 - Nevada

Time for an update.

On November 5, 2012 I sent a letter to Nevada Governor Brian Sandoval asking for his help in closing the loophole in the Open Meeting Law. That is the loophole that allows government bodies (such as Counties) to approve agreements and contracts without having the agreements and contracts fully reduced to writing before they approve them.

In order to close this loophole I suggested amending the Open Meeting Law NRS 241.020 to add language to the effect that:

1. No public body shall approve an agreement or contract unless the full agreement or contract is fully reduced to writing and provided to the public at least five days before the agreement or contract is considered for approval.

2. Any agreement or contract approved in violation of Paragraph 1 shall be null and void.

For my letter to Governor Sandoval in PDF click here. (It includes the Exhibits.)

For the letter in html click here. (The Exhibits are in the PDF version above.)

I received Governor Sandoval’s response in a letter dated November 28, 2012. He said:

Dear Mr. Margolin:

Thank you for taking the time to contact the Governor's Office. I appreciate your letter regarding the Open Meeting Law. As noted in your letter, the Office of the Attorney General oversees the enforcement of the Open Meeting Law. However, I appreciate your suggestions on amending the Open Meeting Law, as my staff and I are constantly looking for ways to make Nevada's government more transparent. Your correspondence allows me to better serve you and the other citizens of Nevada.

In the future, I hope you will continue to keep me informed of matters that are of interest and concern to you. I welcome information from constituents and truly value your viewpoints. Thank you again for contacting my office; we hope the information provided will assist you in your endeavors.

Sincere regards,

BRIAN SANDOVAL

Governor

It was a Nothing response, and Governor Sandoval did exactly that.

Nothing.

For the Governor’s response in PDF format click here.

For the Governor’s response in html click here.

On December 3, 2012 I sent a letter to Nevada Assemblyman Jim Wheeler, the Assemblyman for my district. I asked him the same thing, to close the loophole in Nevada’s Open Meeting Law.

For my letter to Assemblyman Wheeler in PDF format click here. (It includes the Exhibits.)

For the letter in html click here. (The Exhibits are in the PDF version above.)

I received Assemblyman Wheeler’s response in an email dated December 27, 2012.

Dear Mr. Margolin:

I wanted to let you know that I am in receipt of your letter dated 12/3/12, regarding the Open Meeting Laws. Sorry it took so long to get back to you but besides the holidays, I recently went through some surgery that put me out of commission for a while.

I can see by your letter that you have pursued this issue as far as you can go as a citizen and I applaud you for your involvement. However, as I'm sure an involved citizen like yourself is aware, each Legislator only gets a finite number of Bill Draft Request's each session and those BDR's are required to be presented by 12-10-12 for consideration and drafting. While we can submit one more by 2-11-13, all my BDR's, including the last one, are spoken for.

If this issue continues to present itself, I would like you to contact me again sometime before the next session and I will research it and possibly request a change in the law. No guarantees, as I always research a problem completely before committing, but I will look into it.

Sincerely,

Jim Wheeler

Nevada State Assemblyman,

District 39

(775) 684-8842 office

Jim.wheeler@asm.state.nv.us

For Assemblyman Wheeler’s response in PDF format click here.

For Assemblyman Wheeler’s response in html click here.

Note that Assemblyman Wheeler advised me to contact him again sometime before the next session.

1. The Nevada Legislature only meets every two years for 120 days. The next Session will be in 2015.

2. Assemblyman Wheeler is assuming he gets re-elected for the next session. (Members of the Assembly are elected for two-year term so they must stand for re-election for every Session.)

According to Nevada Assemblyman Jim Wheeler, "each Legislator only gets a finite number of Bill Draft Request's each session and those BDR's are required to be presented by 12-10-12 for consideration and drafting."

My questions are:

1. How many Bill Draft Requests are each Legislator allowed for each session?

2. How many Bill Draft Requests did Assemblyman Wheeler submit for the current session (77th Session)?

The answer to the first question is in Nevada Revised Statutes (NRS) 218D.150 and Joint Rule 14 (2011).

The Rules are in the 2013 Legislative Manual at: http://www.leg.state.nv.us/Division/Research/Publications/LegManual/2013/index.cfm

We are interested in Appendix B - Limitations and Deadlines for Bill Draft Requests:

http://www.leg.state.nv.us/Division/Research/Publications/LegManual/2013/AppB.pdf

Here is what it says:

NUMBER OF LEGISLATIVE MEASURES THAT MAY BE REQUESTED FOR DRAFTING, BY ENTITY

Nevada Revised Statutes (NRS) 218D.150 and Joint Rule 14 (2011)

Nevada Legislature—2013 Regular Legislative Session

Authorized Entity

Time Frame

Number of Measures Per Entity

Assemblyman/Assemblywoman –

Incumbent

On or before September 1, 2012†

September 2, 2012, through December 10, 2012

Before 5 p.m. on 8th day of Session

Assemblyman/Assemblywoman–

Newly elected

On or before December 10, 2012

Before 5 p.m. on 8th day of Session

Senator–Incumbent

On or before September 1, 2012†

September 2, 2012, through December 10, 2012

Before 5 p.m. on 8th day of Session

Senator–Newly elected

On or before December 10, 2012

Before 5 p.m. on 8th day of Session

Note that incumbents get to introduce more bills than those who are newly elected. Is that fair to the voters who vote out incumbents in an attempt to get things changed?

There are more entries for other entities such as:

NRS 218D.150* Standing Committee Chairs

Joint Rule 14 (2011) Standing Committees

NRS 218D.155** and Joint Rule 14.4 (2011)

Speaker of the Assembly and Majority Leader of the Senate

Minority Leaders of the Assembly and Senate

NRS 218D.160 and 218E.205

Legislative Commission

Interim Finance Committee

Statutory Legislative Committee

Interim Study Committee created by 2011 Legislature or by the Legislative Commission

NRS 218D.155

Chief Clerk of the Assembly and Secretary of the Senate

Legislative Counsel Before or during Session

NRS 218D.190 Supreme Court

The next part is, “How many Bill Draft Requests did Assemblyman Wheeler submit for the current session (77th Session)?”

The BDR List for the 77^th Session is at http://www.leg.state.nv.us/Session/77th2013/BDRList/page.cfm?showAll=1

For a mirrored copy click here.

The BDR List shows that Assemblyman Wheeler submitted the following Bill Draft Requests:

30-564 AB387 Assemblyman Wheeler Enacts the Fiscal Responsibility and Stewardship of Public Funds Act of 2013. 11/14/2012

48-565 AB157 Assemblyman Wheeler Enacts the Municipal Water Users Equity Act of 2013.

11/14/2012

31-597 Assemblyman Wheeler Establishes a program to provide more funding for Nevada mortgages and small businesses through Nevada chartered banks and credit unions. 11/27/2012

7-598 AB368 Assemblyman Wheeler Provides exemption from certain fees for the start-up of small businesses and other fees pertaining to small businesses. 11/27/2012

That is a total of four.

As a newly elected Assemblyman, Mr. Wheeler was entitled to submit five before December 10, 2012 and, according to Mr. Wheeler, one more by 2/11/13.

Mr. Wheeler will be up for re-election in November 2014. I will not be voting for him.

If you run for his seat (and you can count up to at least five) I will consider voting for you.

On December 3, 2012 I also sent a letter to Nevada State Senator James Settelmeyer.

For my letter to State Senator Settlemeyer PDF format click here. (It includes the Exhibits.)

For the letter in html click here. (The Exhibits are in the PDF version above.)

I sent the letter to State Senator Settlemeyer by USPS. According to the Post Office my letter was delivered on December 4, 2012. (Click here.)

It is now April 2013 and I have not received a response from State Senator Settlemeyer.

Nevada State Senate seats are for four-year terms.

Mr. Settlemeyer’s term ends in November 2014.

I doubt that I will be voting for him.

V. May 23, 2013 – Taormina Fallout #2 – Storey County

1. Cell phone coverage in the Highlands ranges from poor to non-existent. Mostly, it’s non-existent. It’s a longstanding issue of public safety, especially in emergencies. This Summer (2012) a company was granted a Special Use Permit to install and operate an 85’ Stealth “Monopine” Commercial Wireless Communications Tower capable of accommodating up to four wireless carriers. (It was approved by the Storey County Board of Commissioners at their June 19, 2012 meeting based on the recommendation of the Planning Commission made at their April 5 meeting.)

The Special Use Permit contains the restriction (paragraph 14):

14. Antenna Limitations. The monopine and facility shall be used exclusively for commercial wireless communications. The towers shall not be used to support amateur or other non-commercial radio antennae, or lights, flags, banners, pennants, etc. Storey County emergency repeaters and antenna shall be exempt from this requirement.

{Emphasis added}

2. The County has been working on improving its communications systems.

The company that operates an existing communications tower used by the County was granted a Special Use Permit to erect an additional 60’ tower. (It was approved by the Storey County Board of Commissioners at their September 18, 2012 meeting based on the recommendation of the Planning Commission made at their August 16 meeting.)

The Special Use Permit contains the restriction (paragraph 13):

13. Antenna limitations. The antenna support structure may be used to support commercial and governmental wireless communications equipment including commercial radio, television, cellular, internet, broadband, microwave, or other similar communications and repeater equipment. The tower may not be used to support amateur radio antennas or equipment. The tower may not be used to support lights, flags, banners, pennants, or other items not supporting the permitted communications devices.

{Emphasis added}

It is difficult to escape the conclusion that Storey County does not want anything to do with Amateur Radio, not even in its emergency plans.

Tom Taormina did that.

And Tom Taormina is ARRL’s Poster Child for Amateur Radio.

W. May 23, 2013 - Taormina Fallout #3 - The United States

The ARRL (American Radio Relay League) has been trying for years to get the FCC to extend PRB-1 to Home Owners Associations.

1. What is PRB-1?

PRB-1 (1985) is the FCC’s Memorandum and Order (FCC 85-506) concerning Federal preemption of state and Local Regulations. For PRB-1 (1985) click here.

It was the FCC’s implementation of U. S. Code, Title 47 (Telecommunication), Part 97 (Amateur Radio Service), Subpart A (General Provisions), Section 97.17 (Station Antenna Structures).

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.

See PRB-1, 101 FCC 2d 952 (1985) for details.)

[64 FR 53242, Oct. 1, 1999]

{Emphasis added}

(For 47 C.F.R. § 97.15 See: http://edocket.access.gpo.gov/cfr_2002/octqtr/47cfr97.15.htm)

In PRB-1 the FCC’s discussion of the issue is worth reading. See Paragraphs 20 – 24.

However, the paragraph that is most-often quoted is Paragraph 25:

25. 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. We will not, however, specify any particular height limitation below which a local government may not regulate, nor will we suggest the precise language that must be contained in local ordinances, such as mechanisms for special exceptions, variances, or conditional use permits. Nevertheless, local regulations which involve placement, screening, or height of anatennas {sic} based on health, safety, or aesthetic considerations must be crafted to accommodate reasonably amateur communications, and to represent the minimum practicable regulation to accomplish the local authority's legitimate purpose.[FN6]

[FN6] We reiterate that our ruling herein does not reach restrictive covenants in private contractual agreements. Such agreements are voluntarily entered into by the buyer or tenant when the agreement is executed and do not usually concern this Commission.

{Emphasis added}

2. Note the following about PRB-1

a. PRB-1 says, “local regulations which involve placement, screening, or height of anatennas {sic} based on health, safety, or aesthetic considerations must be crafted to accommodate reasonably amateur communications, and to represent the minimum practicable regulation to accomplish the local authority's legitimate purpose.”

The phrase “Reasonably Accommodate” is important because in a disagreement over what is reasonable, what is reasonable is decided in a lawsuit in a U.S. District Court. What is reasonable is decided either by a Jury (if a Jury trial is requested) or by the Judge (if the right to a Jury trial is waived). More about this later.

b. PRB-1 does not apply to “restrictive covenants in private contractual agreements.” An example of such restrictive covenants in contractual agreements” is the CC&Rs (Covenants, Conditions, & Restrictions) usually found in Home Owners Associations.

c. The ARRL had tried to get Home Owners Associations included in PRB-1 but failed. The FCC said (Paragraph 27):

27. Accordingly, the Request for Declaratory Ruling filed July 16, 1984, by the American Radio Relay League, Inc., IS GRANTED to the extent indicated herein and, in all other respects, IS DENIED.

{The request to include Home Owners Associations is the part that was denied.}

3. The ARRL has never given up trying to get PRB-1 extended to Home Owners Associations. They are now mounting a major offensive (and it is offensive).

It started with Public Law 112-96 (Section 6414 of the Middle Class Tax Relief and Job Creation Act of 2012) that came from the Committee on Energy and Commerce of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate.

Section 6414 required the FCC to:

(1) complete a study on the uses and capabilities of amateur radio service communications in emergencies and disaster relief; and

(2) submit to the Committee on Energy and Commerce of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report on the findings of such study.

So far, so good. But then it adds:

(2)(A) an identification of impediments to enhanced amateur radio service communications, such as the effects of unreasonable or unnecessary private land use restrictions on residential antenna installations; and

(B) recommendations regarding the removal of such impediments.

(c) EXPERTISE.—In conducting the study required by subsection (a), the Commission shall use the expertise of stakeholder entities and organizations, including the amateur radio, emergency response, and disaster communications communities.

This has ARRL’s fingerprints all over it. ARRL is using the role of Amateur Radio in providing emergency communications as a Trojan Horse to accomplish its longtime goal of extending PRB-1 (1985) to Home Owners Associations.

For the complete Public Law 112-96 (Middle Class Tax Relief and Job Creation Act of 2012) click here.

4. We find out what the ARRL really thinks about Home Owners Associations

Before the FCC came out with its report, the ARRL printed an editorial in the August 2012 issue of QST (ARRL’s monthly magazine for radio amateurs). The editorial is a vicious attack on Home Owners Associations in general. For example, in paragraph 5 (after discussing the value of PRB-1 starting in 1985):

Unfortunately, since then CC&Rs have spread like invasive species. For five years beginning in 1996 the ARRL went to the FCC with the argument that the effect of applying PRB-1 to government but not to private land use regulation was to deprive the residents of areas blighted by CC&Rs of adequate emergency communications facilities. Ultimately we were told that the FCC would take corrective action only if instructed to by Congress.

Note that the ARRL editorial fails to even distinguish condominiums, detached townhouses, and single-family homes. According to the ARRL editorial Home Owners Associations (and their attendant CC&Rs) are a blight on the landscape and are spreading like weeds.

For the complete ARRL editorial click here.

5. The FCC did not buy what ARRL was selling.

In the FCC’s Report to Congress dated August 20, 2012 they said (page 13, paragraphs 39 and 40):

3. Recommendations

39. Private land use restrictions. Some commenters recommend that CC&Rs be preempted if they prohibit antennas that are within certain limits.[FN84] Others suggest that private land use restrictions on amateur antennas should be permitted only for safety considerations, and not for aesthetic reasons.[FN85] As noted above, however, other commenters believe that it is not necessary to preempt private land use restrictions in order to promote amateur emergency communications, given the ways that even amateurs subject to CC&Rs can communicate effectively and the nature of amateur emergency communications. Moreover, while commenters suggest that private land use restrictions have become more common,[FN86] our review of the record does not indicate that amateur operators are unable to find homes that are not subject to such restrictions. Therefore, at this time, we do not see a compelling reason for the Commission to revisit its previous determinations that preemption should not be expanded to CC&Rs.

40. Other impediments. As noted above, the Commission has already preempted state and local regulations that do not reasonably accommodate amateur radio communications and do not represent the minimum practicable regulations to accomplish the local authority’s legitimate purpose. The Commission has also addressed regulations regarding possession and operation of amateur radio equipment while driving.[FN87] Commission rules that may be an impediment to enhanced amateur service emergency communications can, as the ARRL notes, be considered through the Commission’s rulemaking process.[FN88] Consequently, we do not believe that Congressional action is necessary to address any of these issues.

For the entire FCC’s Report to Congress (August 20, 2012) click here.

6. The ARRL Strikes Back

From the MINUTES OF ARRL EXECUTIVE COMMITTEE, Number 497, Denver, Colorado – September 29, 2012. The relevant parts are Section 4.1.2 and Section 13. (For the complete Minutes, click here.)

4.1.2. The committee discussed the FCC report to Congress entitled Uses and Capabilities of Amateur Radio Service Communications in Emergency and Disaster Relief (GN Docket No. 12-91). It was agreed that the next step is to prepare a summary of the extensive document that the ARRL submitted in response to the FCC’s request for input, for use in taking our case to Congress after the November elections.

13. In other business, the committee discussed possible approaches to legislative representation for the 113th Congress and tasked Mr. Sumner with negotiating a one-year agreement with Chwat & Company. Options for legislative representation, including how increased activity might be funded, will be explored in 2013. Budgeting of division expenses was also discussed briefly.

Who is Chwat & Company?

From their Web site at http://www.chwatco.com/services.html:

Legislative "Trouble Shooting" and Short-Term Consulting

Chwat & Company professionals have over four decades of experience advising clients on moving legislation through the parliamentary “maze,” negotiating and influencing the process.

Experience Makes the Difference

• US Government Regulatory Process

• Millions of dollars secured for clients;

• When everyone says “it’s impossible,” Chwat & Co. does it!;

• Passing legislation despite overwhelming odds; and

• Know who, when and how to affect congressional power

Chwat & Company Offers

• Short-term consulting on exclusive projects;

• Analyzing client’s government relations programs;

• Create new and innovative, pro-active government relations programs in “non-traditional” areas;

and

• Custom training seminars on strategy and tactics.

Case studies and list of clients available upon request

They are professional (and high-power) lobbyists.

7. More remarks from the ARRL using Amateur Radio’s role in providing emergency communications as a Trojan Horse.

This is from the Happenings column (written by S. Khrystyne Kean) from the November issue of QST. (For the complete column click here.) The column quotes ARRL Regulatory Information Manager Dan Henderson in several places. (Ms. Kean does not say how she got the quotes. I did not find a public statement by Mr. Henderson. Perhaps he made the statements in a personal interview with Ms. Kean.)

First Mr. Henderson sucks up to the FCC.

"There are many positive things included in the FCC report to Congress," said ARRL Regulatory Information Manager Dan Henderson, N1ND. “We are pleased that the Commission highlighted the existing Amateur Radio infrastructure to provide disaster and time-critical communications. It also recognized the flexibility of the Amateur Service in working with federal, state, local, and tribal emergency service agencies to supplement existing communications. The affirmation of the value that Amateur Radio brings to the communities across the country is underscored by the suggestion that ‘DHS work with state, local, and tribal authorities so they may develop disaster area access or credentialing policies for trained amateur operators, including a means for documenting their qualifications...’”

The column ends with Ms. Keane quoting Ms. Henderson again:

With the delivery of the FCC's report to Congress, the ARRL will determine its next step in its efforts to find relief for amateurs who live under unduly restrictive private land use regulations. "Our review of the FCC report shows that there is a lot to be done if amateurs living in deed-restricted properties are to receive even the limited relief amateurs enjoy under the Commission's PRB-1 ruling or the limited relief given to deed-restricted properties given by the FCC's OTARD ruling.” Henderson said, “This means continuing the ARRL’s efforts on Capitol Hill and continuing to seek a Congressional directive to the Commission to extend those limited preemptions to include prohibitions of effective Amateur Radio antennas and support structures that are imposed by private land use restrictions. The FCC report to Congress is not the final action in this fight; it merely lays the groundwork for the next steps to be taken by the ARRL.”

As we have seen, one of the ARRL’s next steps is to have Chwat & Company lobby Congress for them.

And I find Mr. Henderson’s characterization of PRB-1 as extending “limited preemptions to include prohibitions of effective Amateur Radio antennas and support structures” to be intellectually dishonest and offensive. The subject of this blog (Taormina v. Storey County) shows how PRB-1 (1985) works in the real world. It is far from limited.

8. How PRB-1 works in the real world

Previously, I wrote that the standard of what is reasonable is decided in a U.S. District Court.

This is how that worked out in Taormina vs. Storey County in U.S. District Court for the District of Nevada:

a. In Taormina’s second lawsuit against Storey County in U.S. District Court for the District of Nevada (Taormina II) Taormina threatened to bankrupt the County and the County Commissioners personally.

There was no public trial. There was a Settlement Conference held in secret, presided over by Magistrate Judge Valerie Cooke.

The County (and the County’s insurance company) gave in and gave Taormina almost everything he wanted.

When the County Commissioners approved the Settlement Agreement at their May 21, 2012 meeting they did not provide a copy of the entire Settlement Agreement to the public. Later, they said that the Settlement Agreement (that they had approved) had not been fully reduced to writing so the part that had not been reduced to writing was not covered by Nevada’s Open Meeting Law and therefore, they did not have to give a copy of it to the Public. It is possible that parts of the Settlement Agreement are still secret. I have covered this disgraceful and odious behavior in previous sections. For example, click here.

b. There were two attorneys in Taormina’s lawsuits against Storey County: a local attorney and out-of-state Fred Hopengarten. Hopengarten is listed as “ARRL Volunteer Counsel”. See Report of the Amateur Radio Legal Defense and Assistance Committee, The American Radio Relay League, 2010 Second Meeting of the Board of Directors. (click here).

Did Hopengarten work for free?

If Hopengarten was paid, who paid him?

I asked ARRL President Kay Craigie if the ARRL was giving financial support to Taormina in his case, either directly or indirectly. For my email click here.

Eventually she responded by saying, “I have acknowledged receipt of your e-mail, and that is all the response I intend to make. 73 - Kay N3KN.” Click here.

Her silence speaks for her.

If the ARRL is successful in getting Congress to extend PRB-1 to Home Owners Associations, and you are a member of a Home Owners Association, will you be able to withstand the ARRL juggernaut?

The ARRL’s actions have supported the right of hams to install towers and antennas regardless of the height of the tower, the number of towers, and the size of the antennas. “Height for Height’s Sake” is like “Growth For Growth’s Sake.” It is the philosophy of a cancer cell.

9. Letters to Congress

On November 28, 2012 I sent a letter to U.S. Senator Harry Reid (D-NV).

Letter to Reid (PDF)

Letter to Reid (html)

Exhibits (PDF)

Most of the letter has been covered in the above sections (Fallout #1 – Nevada, Fallout #2 – Storey County, and Fallout #3 – The United States).

However, the letter contains additional information that is of particular importance to politicians.

Numbers.

I looked up some numbers and estimated some.

Here they are:

Radio Amateurs in Nevada = 6,795

Nevadans who are members of Home Owners Associations = 544,664 (estimated)

I expect that the numbers in other states will have a similar proportion. The number of people (and voters) who are members of Home Owners Association far outweighs the number of licensed radio amateurs.

Perhaps there are members of Home Owners Associations who would not mind having a 170’ tower next to their condominium. I expect that most would mind.

I received a response from Senator Reid in a letter dated February 8, 2013.

Dear Mr. Margolin:

Thank you for contacting me with your problem and providing supplementary documentary evidence.

My staff is looking into your issue and will contact you as soon as possible. My best wishes to you.

Sincerely,

HARRY REID

United States Senator

For his response in PDF click here.

As long as Senator Reid’s staff looks at the Numbers I will be happy.

On November 28, 2012 I also sent letters to U.S. Senator Dean Heller (R-NV) and U.S. Congressman Mark Amodei (R-NV).

Letter to Heller (PDF)

Letter to Amodei (PDF)

Exhibits (PDF)

The USPS delivered my letters.

USPS - Heller

USPS - Amodei

I have not received a response from Heller or Amodei. I am not happy with them.

10. ARRL Legislative Update – Issue # 5 - March 15, 2013

This is from: http://www.arrl.org/files/file/Legislative%20Update%20Newsletters/March%202013%20final.pdf

For a local copy click here.

I actually agree with many of the ARRL’s legislative goals, such as:

· To oppose legislation that would lead to the reallocation of amateur spectrum or to sharing arrangements that reduce the

utility of existing allocations.

· To oppose legislation that diminishes the rights of federal licensees in favor of unlicensed emitters or encourages the

deployment of spectrum-polluting technologies.

· To support the complementary legislative objectives of other radio communication services -- particularly the public safety

and scientific services -- that require spectrum access and protection from interference for non-commercial purposes that

benefit the public.

· To support legislation authorizing FCC Commissioners to appoint an electrical engineer or computer scientist as an

additional member of their staffs to ensure that Commissioners have adequate access to technical expertise when making

decisions”

but not this one:

· To seek legislation instructing the FCC to extend the requirement for “reasonable accommodation” of Amateur Radio station

antennas -- a requirement that now applies to state and local regulations -- to all forms of land use regulation.

This is the one about extending PRB-1 to Home Owners Associations.

There is another part that I agree with.

Contact your representatives.

The ARRL makes it easy for ARRL members (you have to log in).

For everyone else, you can find individual websites for members of the U.S. Senate at http://www.senate.gov and the U.S. House of Representatives at http://www.house.gov.

If you are a member of a Home Owners Association, and this is the only part of this blog that you have read, then read the rest of it.

Read it as a warning.

If the ARRL is successful in getting Congress to extend PRB-1 to Home Owners Association, the same thing could happen to you and your Home Owners Association.

Contact your members of Congress. Tell them not to extend PRB-1 to Home Owners Associations.

Remind them that, although ARRL has the high-power lobbyists, you (and the members of the other Home Owners Associations in your state) have the Numbers.

X. June 8, 2013 Status

The Special Use Permit approved by the Board of Commissioners at their May 21, 2012 meeting contains the condition:

18. SUP Conditions Recording.

It didn’t happen until December 4, 2012 even though it was filed with the Court on June 28, 2012. See:

doc033.pdf Proposed Order

doc033-1.pdf Exhibit (SUP approved by Board of Commissioners on May 21)

I don’t think the SUP would have been filed with the County Recorder at all if Michelle (Adkins) hadn’t held the County’s feet to the fire.

For the document as filed with the County Recorder click here.

It is easy for you to check for yourself. The Storey County Recorder’s Web site is at http://www.storeycountynv.org:1401/cgi-bin/diw200

Enter Name = Taormina and select Order List By Recording Date. Click on Page 4.

TAORMINA, THOMAS S

MEMORANDUM OF AGREEMENT

117729

12/04/2012

This is the entry: http://www.storeycountynv.org:1401/cgi-bin/diw201?CGIOption=Detail&DocNo=117729&DocSf=&Party=1&Seq=1

The last document in the case is Document 34 STIPULATION AND ORDER FOR DISMISSAL WITH PREJUDICE. Click Here.

It says:

IT IS FURTHER STIPULATED that this Court maintain jurisdiction of this matter to enforce the provisions of the settlement reached by the parties which is inclusive of the conditions of the special use permit approved by the Storey County Board of County Commissioners on May 21, 2012 (Special Use Permit No. 2011-010). The conditions approved by the Storey County Board of County Commissioners and agreed to by THOMAS S. TAORMINA and MIDGE A. TAORMINA are attached hereto as Exhibit 1.

(Exhibit 1 is the SUP.)

There is something missing. It’s part of the Settlement Agreement. It wasn’t made available to the Public at the meeting where the Board of Commissioners approved the Settlement Agreement. It wasn’t filed with the Court.

As I noted at the end of Section S May 28, 2012 The Board of Commissioners approves the Settlement Agreement on June 29, 2012 DA Maddox sent me a document called Final Signed Release of All Claims. Click here.

I used OCR to convert it to an html file. Click here.

Since it is part of the Settlement Agreement it should have been filed with the Court.

After all, the Court maintains jurisdiction of the matter to enforce the provisions of the settlement.

How can the Court enforce the provisions of the settlement if it doesn’t have all of them?

Y. July 2014 Status – The Monster Antennas

Taormina put up his 175 ft tower. I think it was completed in the summer of 2013.

In the Final Inspection Report by the Building Department dated September 4, 2013 Austin Osborne said:

On August 13, 2013, I reviewed the SUP Conditions, made an on-site visual assessment of the amateur radio antenna facility, and reviewed Building Inspector Shannon Gardner’s final inspection reports of 9/27/12 thru 7/18/13. Accordingly, said facility appears to comply with the Conditions of SUP Approval.

For the complete letter click here.

However, in a letter to Taormina dated November 14, 2013 Building Inspector Gardner said he had forgotten to check for the anti-climbing devices required by the Special Use Permit. For the letter click here.

As far as I can tell nothing came of it.

At some point (I’m not sure if it was before or after the Final Inspection) Taormina installed two Optibeam 80M 3-element Yagi antennas on the 175 ft tower. According to Taormina’s Web site one was at 165 ft and the other was at 80 ft. See http://www.w7rn.com/main/page_10766_5.html

The Optibeam 80m 3-element Yagi is a formidable antenna. This picture is from OptiBeam’s Web site for the OB3-80+ 3-element Yagi: http://www.optibeam.info/index.php?article_id=63&clang=1

OPTIBEAM OB3-80+

Here are the specifications (I have added the metric to English conversion):

OB3-80+ 3 Element Yagi 80m (SSB+CW)

Bands 80

Elements (number) 3

Max. Element length (m) 23 [75.5 ft]

Boom length (m) 20 [65.6 ft]

Turning Radius (m) 15.6 [51.2 ft]

Feedlines (number) 1 Coax 50 Ohm

Weight (kg) 210 (463.0 lbs)_

Windload at 130 km/h 2.434 N / 3,05 m² / 33,1 feet² [130 km/h = 80.8 mph]

Price incl. 5 KW 1:2 balun and multi switch system

*** 7.799,00 EUR [7,799 EUR - about $10,760]

Price "plain SSB version incl. high quality 5 KW 1:2 balun

*** 6.549,00 EUR [6,549 EUR - about $9,082]

Remember, each element is about 75.5 ft long and the boom is about 65.6 ft long.

Note that the antenna is only rated for wind speeds of 130 km/h (80.8 mph). Presumably, that is why Taormina’s friend “highly modified” it. From Taormina’s Web page at http://www.w7rn.com/main/page_10766_5.html

Top antenna at 165' bottom at 80'. 3 el Optibeam 80M yagis highly modified by K7NV. 44 truss lines on boom and elements of each antenna. 600 lbs each.

Top antenna at 165' bottom at 80'. 3 el Optibeam 80M yagis highly modified

by K7NV. 44 truss lines on boom and elements of each antenna. 600 lbs each.

Sometime in December 2013 we had some winds of about 100 mph. In the eight+ years that I have lived here there have been several times that we have had winds of about 100 mph.

A half-element (37.7 ft) on the upper antenna was bent down a little. (An element is 75.5 ft long, so it is about 37.7 ft on either side of the supporting boom.) Unfortunately, I don’t have a picture of it.

By around early February (2014) the half-element had broken off and was dangling by a lanyard.

The Building Department sent Taormina a Notice to Correct letter dated February 4, 2014:

Dear Mr. Taormina,

On 11/5/13 we had a discussion regarding a bent antennae spar on your 175’ monopole tower that neighbors felt was a safety hazard. At the time you indicated that the antennae spar is equipped with a 1500 lb safety tether, that you were having the antennae re-evaluated by an engineer because it should not have bent, and that you were developing a plan to repair the antennae and prevent future failures.

Since that time it has become apparent that the antennae spar has broken and is now dangling from the safety tether. I received two complaints last week from neighbors who feel that the dangling piece is in danger of breaking free from the tether during a wind-storm, and that it is thereby a public safety hazard.

Under direction from Community Development Director, Dean Haymore, I hereby request that you take immediate action to remove the dangling antennae spar, or proceed immediately with repair or replacement of the antennae in such a manner as to prevent future failures due to wind storms.

For the Notice to Correct click here.

Taormina responded by email in what looks to me like an irrational rant. (As is my general policy I have hidden the email addresses of the people who are private citizens):

From: "Tom K5RC" <tom@k5rc.com>

Date: February 4, 2014 at 11:33:06 AM PST

To: "'Shannon Gardner'" <sgardner@storeycounty.org>, "'Bill Maddox'" <bmaddox@storeycounty.org>, "'Austin Osborne'" <aosborne@storeycounty.org>, <dhaymore@storeycounty.org>

Cc: <xxxxx@yyyy.zzz>, <yyyyy@yyyy.zzz>, <gantinoro@storeycounty.org>, <PWhitten@StoreyCounty.org>

Subject: RE: Damaged antennae

I am in receipt of your letter regarding the broken antenna element. As I have stated before, the element poses absolutely no safety hazard. It is now tethered by no less than 3 trusses with a combined working strength of more than 4,500 pounds. If the concerned neighbors would like to submit an engineering model whereby there is ANY possibility of the element breaking loose AND any possibility of it traveling a distance that could potentially cause any property damage, it will be repaired when I receive a wet-stamped copy of the study, along with a letter from District Attorney Maddox demanding immediate action.

There is no one who wants it repaired expeditiously more than I do. The broken piece of aluminum is hanging over my house, yet we know there is no danger to us. We currently have more than 8” of snow on the ground and the repair work and adding higher strength trusses is going to require at least three days with a 75 ton crane and a man bucket with two different crews. This will require that the snow be gone, and the ground hard and level. I am sure that the Building Department is aware that these conditions will not be likely until at least April. Also, the replacement parts are still in transit from Germany. When they arrive they have to go to a fab shop to have additional reinforcements added. This will take most of February.

Also, the structures have been up for more than 7 months, most of winter and several more frontal passages without any damage to any of the structures or antennas. The overwhelming evidence is that engineering is sound and the construction of the structures meets all specifications and stress parameters.

The December wind storm is documented as a “rogue” event and the actual wind speed was well beyond the design criteria required by the County. As I stated in a recent correspondence to the Building Department and the DA, I take great personal affront that there are still four or five individuals who are intent on causing the County unnecessary work and expense regarding a special permit that was approved under the directive of a Federal Magistrate. Moreover, it has had three different formal inspections by the Building Department, documents are filed with the Recorder and all conditions of the SUP have been met and the subject is closed to further debate.

If it is my neighbors’ intent to continue to harass me with their petulant tantrums after the rule of law prevailed, then they are doing a great job. My wife was forced to retire her job and is now on disability retirement because of six years of being demonized by a few who haven’t the character to confront me directly about their issues. If it was their intent to punish me financially, that has also worked as this kangaroo court has cost more than $350,000 out of pocket and seriously damaged my business. It is my intent to live here until I die, to continue to advance the state of the art in Radiosport, to train new hams, and to continue to be the Emergency Coordinator for Storey County. With the law on my side, this resolve is irrevocable, regardless of the ongoing harassment.

There is an entire web site posted that contains enough false information about me and the legal process to pursue civil remedies. I have hundreds of pages of documentation of false accusations and I have a video tape of the County Commission meeting where I was demonized and accused of being a lawbreaker. I really am tired of dealing with neighbors whose lives are devoted to making my life miserable by promulgating false accusations and information, but I would rather this be concluded without wasting more of the County’s time and more litigation expenses, emotional and financial. There is NO different outcome possible, except having the perpetrators actually spend money out of their own pockets to defend their indefensible accusations. The unanswered question for us is: How could these radio towers possibly affect the ability of these people to enjoy their lives? The other myth about property values (promulgated by the Adkins’) has been shattered by 380 Panamint having been sold twice in the recent past with the sale price having been $404,000 most recently.

Alternatively, if there are those who believe that I have the power to corrupt a Federal Judge whose verbal admonishment to the County was (paraphrasing) “Let me get this right; Mr. Taormina has case law and federal preemptive rulings on his side and the County has a few pissed off neighbors. Say there is more to it than that?” then, by all means, please seek remedies in Federal court against me and the judge.

It is my hope that the DA will inform these people that the case is closed, they are welcome to examine all public records, and to mind their own business. The County has more important work than continuing to answer irrational requests.

By the way, insects have antennae. These are antennas.

Tom Taormina, K5RC

The Comstock Memorial Station, W7RN

Storey County ARES, KS7AA

Virginia City, Nevada On the Comstock

www.W7RN.com

This message was sent from my Home-Pad with a real keyboard

The part where Taormina says:

If the concerned neighbors would like to submit an engineering model whereby there is ANY possibility of the element breaking loose AND any possibility of it traveling a distance that could potentially cause any property damage, it will be repaired when I receive a wet-stamped copy of the study, along with a letter from District Attorney Maddox demanding immediate action.

means that he won’t fix the antenna until his neighbors have a Registered Professional Engineer perform a study saying that the dangling half-element is unsafe. If you don’t know what a Registered Professional Engineer is, see: http://www.nspe.org/resources/licensure/what-pe. If you want to find out if someone is a Registered Professional Engineer in Nevada see: https://nvboeonline.org/UI/License_Search.aspx .

The part that says: “There is an entire web site posted that contains enough false information about me and the legal process to pursue civil remedies” is probably about me. I will note the following:

1. This blog is not a Web site. It is only a Web page. I did not think Taormina was worth setting up a separate Web site for.

2. The phrase “to pursue civil remedies” means suing me. He hasn’t done that.

3. In Nevada the Truth is an absolute defense against defamation, and everything on this blog is, to my best knowledge and belief, True.

4. By threatening to sue me he has created a “legal controversy” which means I could sue him first. (He’s not worth it.)

5. On the other hand, Taormina has defamed me. I should sue him for that. I haven’t done that and I probably won’t. Taormina has enough problems, all of which he made for himself.

What did the County do about Taormina’s dangling 37.7 ft half-element?

Nothing. They stuck their head in the sand, where I am using “sand” as a euphemism for where they actually stuck their head.

Not long after, two more half-elements failed on the upper antenna, and the boom and at least one half-element of the lower antenna failed. I have a picture of that.

The picture was taken in March 2014.

Sometime in April he had the two 80m Yagi antennas taken down.

Did he do this out of concern for his neighbors’ safety? Did he do this out of concern for the safety of his wife and himself?

Or, did he do this because in honor of the ARRL’s 100^th birthday they have designated stations in each state to operate as W1AW/portable and Taormina received the honor as operating as W1AW/NV? See http://www.w7rn.com/main/page_w1aw7_nv.html

He was scheduled to do this April 29, 2014 to May 6, 2014 and is scheduled to do it again October 21, 2014 to October 27, 2014. Operating as W1AW/NV is a great honor and would likely bring in a number of visiting hams.

Maybe he would have been embarrassed if his fellow hams had seen the sorry state of his antennas.

What does it all mean?

1. Taormina has lived here long enough to know that we sometimes get winds of at least 100 mph.

2. He bought two 80m Yagis that are rated for 81 mph.

3. His friend highly modified the antennas.

4. These 80m Yagis are probably the best 80m ham Yagis in the world. (They cost about USD $10K each.)

5. They both failed.

6. The primary reason Taormina wanted the 175 ft tower appears to be so he could use these antennas. (See Need for Height.)

What’s he gonna do now?

And, at one point Taormina said:

Moreover, it has had three different formal inspections by the Building Department, documents are filed with the Recorder and all conditions of the SUP have been met and the subject is closed to further debate.

And later:

Ok, let’s examine the public records. The Web page for the Storey County Recorder is: http://www.storeycounty.org/Recorder/SearchRecorder.asp

Enter the name “Taormina” and have it sort by the Recording Date.

There are a large number of entries going back to 1997, so let’s start with 9/23/2010.

Name	Party	Doc Type	Doc #	Recording Date
TAORMINA, THOMAS S	1	NOTICE OF DEFAULT	113885	9/23/2010
TAORMINA, MIDGE A	1	NOTICE OF DEFAULT	113885	9/23/2010
TAORMINA, THOMAS S	1	NOTICE OF DEFAULT	114273	12/09/2010
TAORMINA, MIDGE A	1	NOTICE OF DEFAULT	114273	12/09/2010
TAORMINA, THOMAS S	2	SATISFACTION OF JUDGMENT	115528	8/26/2011
TAORMINA, MIDGE A	2	SATISFACTION OF JUDGMENT	115528	8/26/2011
TAORMINA, THOMAS S	1	MEMORANDUM OF AGREEMENT	117729	12/04/2012
TAORMINA, MIDGE A	1	MEMORANDUM OF AGREEMENT	117729	12/04/2012
TAORMINA, THOMAS S	1	DEED TRUST/ASSIGNMENT	119472	10/21/2013
TAORMINA, MIDGE A	1	DEED TRUST/ASSIGNMENT	119472	10/21/2013

The documents are listed twice, one for Tom and one for Midge, so there are just five since 9/23/2010.

The document format used by the Storey County Recorder is also used by many other counties in Nevada. It’s cumbersome to read and save, so I have converted them to PDF files and put them on my own server. Click on the Document number to see them.

Name	Party	Doc Type	Doc #	Recording Date
TAORMINA, THOMAS S	1	NOTICE OF DEFAULT	113885	9/23/2010
TAORMINA, THOMAS S	1	NOTICE OF DEFAULT	114273	12/09/2010
TAORMINA, THOMAS S	2	SATISFACTION OF JUDGMENT	115528	8/26/2011
TAORMINA, THOMAS S	1	MEMORANDUM OF AGREEMENT	117729	12/04/2012
TAORMINA, THOMAS S	1	DEED TRUST/ASSIGNMENT	119472	10/21/2013

Taormina’s statement that all of the documents are filed with the Recorder is obviously untrue. The only one that pertains to the Towers is Document 117729, which is the Special Use Permit.

The Final Signed Release of All Claims (Click here) was not recorded.

The Final Inspection Report was not recorded.

Now, about the other public records that Taormina has welcomed us to examine.

Document 113885 is Notice of Breach and Default and of Election to Cause Sale of Real Property under deed of trust.

Document 114273 is also Notice of Breach and Default and of Election to Cause Sale of Real Property under Deed of Trust.

Document 119472 is a Nevada Assignment of Deed of Trust from Mortgage Electronic Registrations Systems, Inc to JP Morgan Chase Bank. Mortgage Electronic Registrations Systems, Inc has an interesting story. See: http://en.wikipedia.org/wiki/Mortgage_Electronic_Registration_Systems

Document 115528 has an interesting history of its own. It is the satisfaction of a Judgment against the Taorminas going back to 2003. See Document 096015 Order: Granting Defendant Highland Ranches Property Owners Association Motion for Costs and Attorney’s Fees.

Since the Highland Ranches Property Owners Association was the Defendant it means that the Taorminas sued them and lost. A confidential source told me that the HRPOA had gotten tired of waiting for Taormina to pay them the money the Court had ordered him to pay them (in 2003) so they got a Writ of Execution directing the Sheriff to seize his ham radio equipment and sell it at public auction to satisfy the debt. Taormina paid them the next day.

Here is a document that one of my sources found on the Web. (Since it’s on the Web it’s a public document.) It was originally in MS Word format, I converted it to PDF. Click Here.

It’s a very interesting letter from Taormina to Quality Loan Service, which is the company that filed these documents:

TAORMINA, THOMAS S	1	NOTICE OF DEFAULT	113885	9/23/2010
TAORMINA, THOMAS S	1	NOTICE OF DEFAULT	114273	12/09/2010

It was found at: www.docstoc.com/docs/149132973/Tom-Taormina_-CMC_-CPCM_-CQMgr---Amazon-S3&ei=Ja_RU8m9BtD6oASq4IKoAQ&usg=AFQjCNFvuJe2vcGIkEl3JKxUStaBCr1BoA&sig2=IiGdF1hrj-Uuh5CbyaeCXg&bvm=bv.71778758,d.cGU

So, Friends, what have we learned from the public records that Taormina welcomed us to examine?

Be Careful What You Ask For.

Z. July 2014 Status – ARRL wants to wreck your Home Owners Association

Part 1 – What is this all about?

Part 2 – What is HR.4969 and Who Wrote It?

Part 3 – Why does Congress want to interfere with private contracts?

Part 4 – Does Congress Have a Truly Compelling Reason for Interfering with Private Contracts?

Part 5 – ARRL’s Strategy For Getting HR.4969 Passed

Part 6 – The House Energy & Commerce Committee

Part 7 – The Numbers

Part 8 – What Happens Next?

Part 9 – Summary

----------------------------------------------------------------------------

Part 1 – What is this all about?

The ARRL (American Radio Relay League) has been trying for years to get the FCC to extend PRB-1 to Home Owners Associations. I have discussed this in some detail in the section (which you can click on to read):

W. May 23, 2013 - Taormina Fallout #3 - The United States (the ARRL hates your Home Owners Association)

The short version of my discussion of PRB-1 is:

1. PRB-1 is the FCC Rule that is the implementation of 47 C.F.R. § 97.15 .

2. Under PRB-1 local governments may not prohibit ham antennas or towers for ham antennas, but:

Nevertheless, local regulations which involve placement, screening, or height of anatennas {sic} based on health, safety, or aesthetic considerations must be crafted to accommodate reasonably amateur communications, and to represent the minimum practicable regulation to accomplish the local authority's legitimate purpose.

{Emphasis added}

The phrase “accommodate reasonably amateur communications” is awkward. Most of the time people use the phrase from 47 C.F.R § 97.15 which is “reasonably accommodate”. In fact, 47 C.F.R § 97.15 says all of it better (and does not misspell “antenna”):

3. PRB-1 does not define what is required to reasonably accommodate amateur communications. This is important because in a disagreement over what is reasonable, what is reasonable is decided in a lawsuit in a U.S. District Court. What is reasonable is decided either by a Jury (if a Jury trial is requested) or by the Judge (if the right to a Jury trial is waived).

If you have been reading this blog you know how that turned out. Taormina threatened to bankrupt Storey County (and the Storey County Commissioners personally) and they surrendered to him and gave him almost everything he wanted.

4. PRB-1 does not apply to Home Owners Associations. In Footnote 6:

We reiterate that our ruling herein does not reach restrictive covenants in private contractual agreements. Such agreements are voluntarily entered into by the buyer or tenant when the agreement is executed and do not usually concern this Commission.

5. ARRL has been trying unsuccessfully for years to get the FCC to change that so that PRB-1 does apply to Home Owners Associations. The last time was 2012.

6. As a result, ARRL hired professional (and high powered) lobbyists (Chwat & Company) See: http://www.chwatco.com/services.html:

7. The result is HR.4969, the Amateur Radio Parity Act of 2014 introduced 6/25/2014 in the 113th Congress (2013 - 2014) by Rep Adam Kinzinger, [IL-16, which means the 16^th Congressional District of Illinois]. He introduced the bill in the House Committee on Energy and Commerce, of which he is a member. According to his biography (http://kinzinger.house.gov/biography/) he was first sworn into the United States House of Representative in January 2011 and is on the Energy & Commerce Committee as well as the Foreign Affairs Committee.

That means he was elected in the General Election in 2010 and 2012, and will face re-election later this year (2014).

Part 2 – What is HR.4969 and Who Wrote It?

The following is from http://thomas.loc.gov/cgi-bin/bdquery/z?d113:h.r.4969:?iframe=true&width=100%&height=100% which is a good way to track the progress of a bill.

For HR.4969 (113^th Congress): http://thomas.loc.gov/cgi-bin/t2GPO/http://www.gpo.gov/fdsys/pkg/BILLS-113hr4969ih/pdf/BILLS-113hr4969ih.pdf

This is what it says (I have formatted it to make it easier to read):

[Congressional Bills 113th Congress]

[From the U.S. Government Printing Office]

[H.R. 4969 Introduced in House (IH)]

113th CONGRESS 2d Session

H. R. 4969

To direct the Federal Communications Commission to extend to private land use restrictions its rule relating to reasonable accommodation of amateur service communications.

_______________________________________________________________________

IN THE HOUSE OF REPRESENTATIVES

June 25, 2014

Mr. Kinzinger of Illinois (for himself and Mr. Courtney) introduced the following bill; which was referred to the Committee on Energy and Commerce

_______________________________________________________________________

A BILL

To direct the Federal Communications Commission to extend to private land use restrictions its rule relating to reasonable accommodation of amateur service communications.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Amateur Radio Parity Act of 2014''.

SEC. 2. FINDINGS.

Congress finds the following:

(1) More than 700,000 radio amateurs in the United States are licensed by the Federal Communications Commission in the amateur radio service.

(2) Amateur radio, at no cost to taxpayers, provides a fertile ground for technical self-training in modern telecommunications, electronics technology, and emergency communications techniques and protocols.

(3) There is a strong Federal interest in the effective performance of amateur radio stations established at the residences of licensees. Such stations have been shown to be frequently and increasingly precluded by unreasonable private land use restrictions, including restrictive covenants.

(4) Federal Communications Commission regulations have for 28 years prohibited the application to amateur radio stations of State and local regulations that preclude or fail to reasonably accommodate amateur service communications, or that do not constitute the minimum practicable regulation to accomplish a legitimate State or local purpose. Commission policy has been and is to permit erection of a station antenna structure at heights and dimensions sufficient to accommodate amateur service communications.

(5) The Federal Communications Commission has sought guidance and direction from Congress with respect to the application of the Commission's limited preemption policy regarding amateur radio communications to private land use restrictions, including restrictive covenants.

SEC. 3. ACCOMMODATION OF AMATEUR SERVICE COMMUNICATIONS.

Not later than 120 days after the date of the enactment of this Act, the Federal Communications Commission shall amend section 97.15(b) of title 47, Code of Federal Regulations, so that such section prohibits application to amateur service communications of any private land use restriction, including a restrictive covenant, that--

(1) precludes such communications;

(2) fails to reasonably accommodate such communications; or

(3) does not constitute the minimum practicable restriction on such communications to accomplish the legitimate purpose of the private entity seeking to enforce such restriction.

It has some very nice things to say about amateur radio.

It should, because the ARRL wrote it.

This is what the ARRL said in the ARRL Letter for June 26, 2014 (http://www.arrl.org/arrlletter/?issue=2014-06-26):

House Bill Would Require FCC to Extend PRB-1 Coverage to Restrictive Covenants

A bill with bipartisan support has been introduced in the US House of Representatives that calls on the FCC to apply the "reasonable accommodation" three-part test of the PRB-1 federal pre-emption policy to private land-use restrictions. HR.4969, the "Amateur Radio Parity Act of 2014" was introduced on June 25 at the request of the ARRL, which worked with House staffers to draft the proposed legislation. The bill's sponsor is Rep Adam Kinzinger (R-IL). It has initial co-sponsorship from Rep Joe Courtney (D-CT). If the measure passes the 113th Congress, it would require the FCC, within 120 days of the Bill's passage, to amend the Part 97 Amateur Service rules to apply PRB-1 coverage to include homeowners' association regulations and deed restrictions, often referred to as "covenants, conditions, and restrictions" (CC&Rs). Presently, PRB-1 only applies to state and local zoning laws and ordinances.

"There is a strong federal interest in the effective performance of Amateur Radio stations established at the residences of licensees," the bill states. "Such stations have been shown to be frequently and increasingly precluded by unreasonable private land-use restrictions, including restrictive covenants."

The 11-page PRB-1 FCC Memorandum Opinion and Order is codified at Â§ 97.15(b) in the FCC Amateur Service rules, giving the regulation the same effect as a federal statute. In short, PRB-1 states that local governments cannot preclude Amateur Radio communications; they must "reasonably accommodate" amateur operations, and the state and local regulations must be the minimum practicable regulation to accomplish a legitimate governmental interest. Subject to those guidelines, municipalities may still establish regulations with respect to height, safety, and aesthetic concerns.

For 28 years, FCC regulations have "prohibited the application to Amateur Radio stations of state and local regulations that preclude or fail to reasonably accommodate Amateur Service communications," the bill points out, "or that do not constitute the minimum practicable regulation to accomplish a legitimate state or local purpose." Since PRB-1 was enacted, the FCC has said several times that it would prefer to have some guidance from Congress before extending the policy to private land-use regulations.

HR.4969 has been referred to the House Energy and Commerce Committee. Rep Greg Walden, W7EQI (R-OR), chairs that panel's Communications and Technology Subcommittee, which will consider the measure.

ARRL Hudson Division Director Mike Lisenco, N2YBB, is a principal advocate for the current legislative initiative to gain PRB-1 recognition for CC&Rs. Lisenco said the most urgent task now is to get additional co-sponsors to sign onto HR.4969.

{Emphasis added}

Part 3 – Why does Congress want to interfere with private contracts?

Let’s go back to the Library of Congress Thomas page: http://thomas.loc.gov/cgi-bin/bdquery/z?d113:h.r.4969:?iframe=true&width=100%&height=100%

There is a button that says Constitutional Authority Statement.

This is the Constitutional Authority for HR.4969:

[Congressional Record Volume 160, Number 100 (Wednesday, June 25, 2014)]

[House]

[Page H5769]

From the Congressional Record Online through the Government Printing Office [www.gpo.gov]

Mr. KINZINGER of Illinois: H.R. 4969.

Congress has the power to enact this legislation pursuant to the following:

the Fourteenth Amendment, Section 1 [Rights Guaranteed];

...the means employed to effect its exercise may be neither arbitrary nor oppressive but must bear a real and substantial relation to an end that is public, specifically, the public health, safety, or morals, or some other aspect of the general welfare.

The following is the entire Fourteenth Amendment to the U.S. Constitution (from http://www.senate.gov/civics/constitution_item/constitution.htm):

14th Amendment

Amendment XIV

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The phrase:

is not in the Fourteenth Amendment.

Did Rep. Kinzinger get his Amendments mixed up?

Nope, the quoted phrase does not appear anywhere in the U.S. Constitution or any of the Amendments. See http://www.senate.gov/civics/constitution_item/constitution.htm

You can find this phrase in the CRS Annotated Constitution at http://www.law.cornell.edu/anncon/html/amdt14a_user.html#pg1559

Police Power Defined and Limited.—The police power of a State today embraces regulations designed to promote the public convenience or the general prosperity as well as those to promote public safety, health, and morals, and is not confined to the suppression of what is offensive, disorderly, or unsanitary, but extends to what is for the greatest welfare of the state.65

Because the police power is the least limitable of the exercises of government, such limitations as are applicable are not readily definable. These limitations can be determined, therefore, only[p.1580]through appropriate regard to the subject matter of the exercise of that power.66 “It is settled [however] that neither the ‘contract’ clause nor the ‘due process’ clause had the effect of overriding the power of the state to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant; and that all contract and property [or other vested] rights are held subject to its fair exercise.”67 Insofar as the police power is utilized by a State, the means employed to effect its exercise can be neither arbitrary nor oppressive but must bear a real and substantial relation to an end which is public, specifically, the public health, public safety, or public morals, or some other phase of the general welfare.68

A general rule often invoked is that if a police power regulation goes too far, it will be recognized as a taking of property for which compensation must be paid.69 Yet where mutual advantage is a sufficient compensation, an ulterior public advantage may justify a comparatively insignificant taking of private property for what in its immediate purpose seems to be a private use.70 On the other hand, mere “cost and inconvenience (different words, probably, for the same thing) would have to be very great before they could become an element in the consideration of the right of a state to exert its reserved power or its police power.”71 Moreover, it is elementary that enforcement of uncompensated obedience to a regulation passed in the legitimate exertion of the police power is not a taking without due process of law.72 Similarly, initial compliance with a regulation which is valid when adopted occasions no forfeiture of the right to protest when that regulation subsequently loses its validity by becoming confiscatory in its operation.73

{Emphasis added}

What is the CRS Annotated Constitution?

From http://www.law.cornell.edu/anncon/authorship.html

The content of the CRS Annotated Constitution was prepared by the Congressional Research Service (CRS) at the Library of Congress, and published electronically in plaintext and PDF by the Government Printing Office. Dating back to 1964, the initial online annotations were published in 1992, and supplements were released in 1994, 1996, 1998, and 2000.

This edition is a hypertext interpretation of the CRS text. It links to Supreme Court opinions, the U.S. Code, and the Code of Federal Regulations, as well as enhancing navigation through linked footnotes and tables of contents.

The CRS Annotated Constitution, as useful as it is, is not the Constitution.

Indeed, the section that Rep. Kinzinger quotes says that the Government must have a truly compelling interest in taking someone’s contract or property rights, especially if it is taking them for someone else’s private use.

Otherwise, it is a taking under the Fifth and Fourteenth Amendments.

How is the government allowing your neighbor in an Association to put up a 195 ft tower a taking? After all, it’s on his property.

If your neighbor’s new 195 ft. tower lowers the value of your property, or makes it impossible to sell your property, then it is a taking.

I am assuming that when you bought your property:

1. Your neighbor’s tower was not there; and

2. The Association’s CC&Rs prohibited such a tower.

This doesn’t even consider the damage it may do to your peace and serenity and your ability to quietly enjoy your home.

You can read Rep. Kinzinger’s “Constitutional” reference for yourself in the Congressional Record Volume 160, Number 100 (Wednesday, June 25, 2014)] [House] [Page H5769]

http://www.gpo.gov/fdsys/pkg/CREC-2014-06-25/pdf/CREC-2014-06-25-house.pdf

If HR.4969 passes, Congress will be affecting the property values of the 63.4 million Americans who live in the 323,600 communities that have Home Owners Associations. It will lower property values and diminish the ability of the 63.4 million Americans to peacefully enjoy their homes.

Part 4 – Does Congress Have a Truly Compelling Reason for Interfering with Private Contracts?

Does Congress have a truly compelling reason for doing this?

No, all they have are the self-serving statements of the ARRL.

If Congress really wants to do this thing then they need to have an objective study done, perhaps by CRS (Congressional Research Service). Perhaps it should also be done by GAO (Government Accountability Office). These people are accountants. If HR.4969 passes, the Government will face lawsuits under the Due Process provisions of the Fifth and Fourteenth Amendments. CRS and GAO can determine if there are less expensive (and onerous) ways to achieve the stated goal of providing communications during emergencies. They can determine the truthfulness of the ARRL’s statement that:

If HR.4969 passes, there will be a cost to taxpayers. There will be direct costs to people living in communities having a Home Owners Association because, if a ham insists on putting up a big tower with a big ugly antenna, their property values will go down. If they object, there will be legal costs for the lawsuit. There will be indirect costs for all taxpayers from the Due Process (Fifth and Fourteenth Amendments) lawsuits against the Government that are sure to follow.

When I became a ham in 1961, most hams were still building at least some of their own equipment, especially transmitters. If you wanted to operate in the VHF bands (like 2 meters) you probably built your own transverter, too. A transverter converted the signals on 2 meters down to frequencies you could receive on your HF (High Frequency) receiver. Commercially made equipment was too expensive for most of us. Hams who bought all their equipment were derided as “appliance operators.”

Nowadays, most hams are “appliance operators.” How does buying a rig provide a fertile ground (or any ground) in training for electronics technology? The only training ground in telecommunications that it provides is how to turn which knobs. It’s not even modern communications. Modern communications is digital, and is Internet-based.

After the studies are done, then Congress needs to hold public hearings.

(In the interests of disclosure I am licensed as WA2VEW with an Amateur Extra Class license and am a member of the ARRL. ARRL has never asked me if I approve of the actions they are taking on this issue or any other issue. ARRL is not a democracy.)

BTW, do you want to have communications in the event of an emergency?

1. Harden the cell phone system and Public Switched Network so they won’t go down in an emergency. That means providing emergency power for the systems and building the towers and equipment buildings so they will withstand high winds, earthquakes, and floods.

2. Get yourself a satellite Internet provider (as a backup) and have your own emergency power for your satellite dish/equipment and computer equipment including a wireless router. That way, in an emergency you can open up your router so your neighbors can use your system, too. If you have a Wi-Fi enabled phone it will work, too, except it probably won’t work on voice because of the time delays in the satellite system. Data and texts should work just fine. You don’t have to bring your emergency messages to a neighbor ham and rely on him/her to send it along with everyone else’s emergency messages and wondering if your message will get delivered.

You can power a satellite Internet system, a laptop PC, and a wireless router for several hours from a marine deep-discharge battery and an inverter. For longer periods you can use a portable generator. If all you use power for is this communications system you can store fuel to last several days. For the really long haul you can use solar power to charge your marine deep-discharge battery.

Part 5 – ARRL’s Strategy For Getting HR.4969 Passed

See the ARRL’s Legislative Update – Issue # 6 July 2014. You can find it here: www.arrl.org/files/file/Legislative%20Update%20Newsletters/Issue%206.pdf

If the link breaks I have made a local copy. Click here.

ARRL wants the ham radio community to contact their representatives and urge them to pass HR.4969.

1. They are making it easier to do by providing a form letter for hams to mail. (Actual mail is considered more effective than email/formmail.)

2. They also say that if you send mail directly to your Representative it will be delayed 5 – 7 weeks by the security process put into place after 9/11 so you should send it to ARRL, and ARRL will have it hand delivered directly to the various congressional offices.

From Legislative Update #6 (PDF page 6):

Why Do We Request Letters Be Mailed to ARRL For Delivery?

We are frequently asked why the ARRL asks that letters be mailed to ARRL for delivery instead of

simply mailing them directly to the Congressional offices. The answer is two-fold. First, since the 9/11 attacks and subsequent security threats, all incoming mail to Congressional offices is first diverted to a holding area outside of Washington DC. Once at that facility it undergoes a series of scans to test for a variety of problems. Only after it passes the security tests is it forwarded on to Capitol Hill for delivery. The delay in delivery is generally in the 5-7 week range. By mailing the letters to the ARRL, we are able to have the letters hand delivered to the various congressional offices in a timely manner.

a. While it is technically true that the security process was put into place after 9/11 it gives the misleading impression that it was put into place because of the attacks on 9/11. The security process was actually put into place because of the anthrax letters sent to Senator Daschle and others.

From http://en.wikipedia.org/wiki/2001_anthrax_attacks :

The 2001 anthrax attacks in the United States, also known as Amerithrax from its Federal Bureau of Investigation (FBI) case name, occurred over the course of several weeks beginning on Tuesday, September 18, 2001, one week after the September 11 attacks. Letters containing anthrax spores were mailed to several news media offices and two Democratic U.S. Senators, killing five people and infecting 17 others. According to the FBI, the ensuing investigation became "one of the largest and most complex in the history of law enforcement"

It’s a minor thing but it shows how the ARRL is either careless or is so accustomed to spinning things that they can’t help themselves.

b. I called the office of Senator Harry Reid (one of Nevada’s Senators, which makes me one of his constituents). I spoke to one of his aides and asked if the security process really takes 5-7 weeks.

He said that 5-7 weeks sounded a bit long and that it was probably more like 1-2 weeks.

I told him the ARRL is promoting a particular issue and they say that if people send the mail to them, they will have it hand delivered to the Congressional offices. I expressed my feeling that allowing any outside organization to hand-deliver mail was a bad idea and put our elected representatives in danger.

The aide said that for mail that was hand-delivered:

(i) The envelope must be open; and

(ii) Capitol Security has a facility to test the envelope for dangerous biologicals. (Hopefully, other dangerous agents, too.)

The ARRL is misrepresenting the truth in order to get you to send your mail them instead of sending directly. Why are they doing that?

I wonder if ARRL will forward a letter that is against HR.4969 or maybe just not sufficiently in favor of it? Or maybe illiterate? (We wouldn’t want to give the Representatives a bad impression of hams.)

In any event, there is a better way for you to send your elected representative a letter.

Fax it.

c. It isn’t just the mail sent to Congress that goes through the security process. The Post Office branch that serves Congress also serves many Federal agencies. Therefore, all of the mail goes through the security procedures and is delayed.

One of those agencies is the Patent Office. When the security measures were put in place in September 2011 people in the intellectual property community noticed that the mail they were sending to the Patent Office was suddenly taking a long time to get there. It took the Patent Office several months to admit that the mail sent to them (and which they sent out) went through the same Post Office as the one used by Congress.

People were a little alarmed by this, but not because of the delay. When the Daschle anthrax letter was in the Post Office it may have cross-contaminated other mail, some of which could easily have been mail that the Patent Office had sent out. The Patent Office knew this and didn’t say anything until months later.

And by coincidence, I received an Office Action (for a patent application) from the Patent Office that they sent around the time that the Daschle anthrax letter was in the same Post Office. After a few weeks of feeling unwell I went to my doctor for something else. When I asked her if I might have gotten anthrax she reassured me that I hadn’t, because if I had gotten infected I would already be dead.

Also, back then (and maybe still) the mail was being sent to a facility in New Jersey to be irradiated. There was a rumor that some printer inks did not take kindly to being irradiated so that some letters finally delivered to the Patent Office were blank.

Part 6 - What You Can Do

ARRL has provided the means for you to find out who your representative is: http://www.arrl.org/contacting-your-congressional-representatives . It only tells you who your Representative is, who might not be on the Energy & Commerce Committee. It might only work for ARRL members.

Before we get to that, there are some things in the ARRL Legislative Update that caught my attention.

a. From Key Talking Points on HR 4969 (PDF page 5):

►The American Radio Relay League, Incorporated (ARRL) is the representative of Amateur Radio in the United States. There are more than 720,000 Amateur Radio operators licensed by the FCC. ARRL’s membership of over 160,000 includes the most active and dedicated Amateur Radio operators.

Although there are more than 720,000 hams in the U.S. with active licenses only 160,000 belong to the ARRL. How can the ARRL claim to be the representative of Amateur Radio in the U.S. when only 22% of hams with active licenses are members?

b. Their Washington Consultant is The Keelen Group. See: http://www.keelengroup.com/ . “Washington Consultant” is another term for Lobbyist. I wonder what happened to Chwat?

The House Energy & Commerce Committee

HR.4969 was introduced in the House Energy & Commerce Committee. This is their Web site: http://energycommerce.house.gov/

These are the members of the House Energy & Commerce Committee (from http://energycommerce.house.gov/about/membership)

There certainly are a lot of members. I count 54. Since there are 435 total members of the House it means that 12.4% of the members of the House are on the House Energy & Commerce Committee.

Here they are. If you click on the name it will take you to their House Web page. At the bottom of their Web page is their:

Address

Phone Number

Fax Number

E&C Membership

Republican Members	Democratic Members
Fred Upton (MI)- Chairman	Henry Waxman (CA) - Ranking Member
Ralph Hall (TX)	John D. Dingell (MI)
Joe Barton (TX) - Chairman Emeritus	Frank Pallone Jr. (NJ)
Ed Whitfield (KY)	Bobby L. Rush (IL)
John Shimkus (IL)	Anna G. Eshoo (CA)
Joseph R. Pitts (PA)	Eliot L. Engel (NY)
Greg Walden (OR)	Gene Green (TX)
Lee Terry (NE)	Diana DeGette (CO)
Mike Rogers (MI)	Lois Capps (CA)
Tim Murphy (PA)	Michael F. Doyle (PA)
Michael C. Burgess (TX)	Jan Schakowsky (IL)
Marsha Blackburn (TN) - Vice Chairman	Jim Matheson (UT)
Phil Gingrey (GA)	G. K. Butterfield (NC)
Steve Scalise (LA)	John Barrow (GA)
Bob Latta (OH)	Doris O. Matsui (CA)
Cathy McMorris Rodgers (WA)	Donna Christensen (VI)
Gregg Harper (MS)	Kathy Castor (FL)
Leonard Lance (NJ)	John Sarbanes (MD)
Bill Cassidy (LA)	Jerry McNerney (CA)
Brett Guthrie (KY)	Bruce Braley (IA)
Pete Olson (TX)	Peter Welch (VT)
David McKinley (WV)	Ben Ray Lujan (NM)
Cory Gardner (CO)	Paul Tonko (NY)
Mike Pompeo (KS)	John Yarmuth (KY)
Adam Kinzinger (IL)
Morgan Griffith (VA)
Gus Bilirakis (FL)
Bill Johnson (OH)
Billy Long (MO)
Renee Ellmers (NC)

If you want to find out who your representative is, go here: http://www.house.gov/representatives/find/

Representatives tend to not want to hear from you if you are not a constituent.

If they are on a committee that makes decisions that affect you, and you are not a constituent, they still probably don’t want to hear from you unless you are a fair-sized contributor.

Maybe you will be lucky and one of the Representatives on the Committee is your Representative. I am not so lucky. My Representative (Rep. Mark Amodei) is not on the E&C Committee.

You can write to your Representative (or all of the Representatives on the Committee) as an individual.

You could also consider bringing this issue to the attention of your Association Board (if you are a member of a Home Owners Association) and the Board can write to the Representative. That might be more effective since the Board can say that your Association has XX members.

You can direct people to this section (Z. July 2014 Status – ARRL wants to wreck your Home Owners Association) with the URL:

www.jmargolin.com/towers/tom_index.htm#b67

I will not present a form letter because I am an engineer, independent inventor, and blogger. I am not a lobbyist.

But I do have a suggestion. Point out to your Representative the Numbers.

I only have the Numbers for each State, not for each Congressional district, but they should get the message anyway.

There are a great many more members of Home Owners Associations than there are Radio Amateurs.

Part 7 – The Numbers

Here is a table I put together showing, by state, the population of the state, the estimated number of members of Home Owners Associations, the number of hams with active licenses, the percent of hams in the total population, and the ratio of members of Home Owners Associations to the number of hams.

a. The population of each state is the projected number provided by the U.S. Census Bureau (7/18/2014): http://www.census.gov/popest/data/state/totals/2013/index.html

State Totals: Vintage 2013

Tables

Annual Population Estimates

Annual Estimates of the Resident Population for the United States, Regions, States, and Puerto Rico: April 1, 2010 to July 1, 2013 (NST-EST2013-01) [XLS - 37k] | [CSV - 6k] | [American FactFinder]

I downloaded the XLS version.

The population numbers are for all ages. I did not separate the population by age. If you really want to do that see: http://quickfacts.census.gov/qfd/index.html#

b. I obtained the number of hams with active licenses from the FCC Ham Database (7/18/2014): http://wireless2.fcc.gov/UlsApp/UlsSearch/results.jsp. First, under Service Specific Search select Amateur. Then select:

Operator Class – All

State – xxxx

License Detail – Active

There does not appear to be a way to select only individuals, so the number includes club stations. You can select only club stations and subtract the number from the total but the number of club stations is going to be relatively small so I didn’t do it.

c. The data for the estimated number of U.S. association-governed communities and individual housing units and residents within those communities are for 2012 and came from the Community Associations Institute (http://www.caionline.org) at: http://www.caionline.org/info/research/Pages/default.aspx

There are probably some licensed hams living in Home Owners Associations. Even if they have the same percentage of the general population their numbers are small compared to non-hams.

Geographic Area	U.S. Census Projected Population for 2013	Estimated Members of Home Owners Associations 2012 (20%)	FCC Database Hams with Active Licenses	Per Cent Hams of Total Population	Ratio of Members of Home Owners Associations to Number of Hams

United States	316,128,839	63,400,000	775,630	0.25	81.7

Alabama	4,833,722	966,744	12,922	0.27	74.8
Alaska	735,132	147,026	3,892	0.53	37.8
Arizona	6,626,624	1,325,325	19,665	0.30	67.4
Arkansas	2,959,373	591,875	8,451	0.29	70.0
California	38,332,521	7,666,504	110,804	0.29	69.2
Colorado	5,268,367	1,053,673	16,314	0.31	64.6
Connecticut	3,596,080	719,216	8,308	0.23	86.6
Delaware	925,749	185,150	1,807	0.20	102.5
District of Columbia	646,449	129,290	469	0.07	275.7
Florida	19,552,860	3,910,572	44,081	0.23	88.7
Georgia	9,992,167	1,998,433	18,880	0.19	105.8
Hawaii	1,404,054	280,811	3,932	0.28	71.4
Idaho	1,612,136	322,427	7,279	0.45	44.3
Illinois	12,882,135	2,576,427	22,170	0.17	116.2
Indiana	6,570,902	1,314,180	16,487	0.25	79.7
Iowa	3,090,416	618,083	6,623	0.21	93.3
Kansas	2,893,957	578,791	7,969	0.28	72.6
Kentucky	4,395,295	879,059	10,078	0.23	87.2
Louisiana	4,625,470	925,094	7,003	0.15	132.1
Maine	1,328,302	265,660	4,894	0.37	54.3
Maryland	5,928,814	1,185,763	11,957	0.20	99.2
Massachusetts	6,692,824	1,338,565	14,326	0.21	93.4
Michigan	9,895,622	1,979,124	22,679	0.23	87.3
Minnesota	5,420,380	1,084,076	12,518	0.23	86.6
Mississippi	2,991,207	598,241	5,916	0.20	101.1
Missouri	6,044,171	1,208,834	15,742	0.26	76.8
Montana	1,015,165	203,033	3,872	0.38	52.4
Nebraska	1,868,516	373,703	4,113	0.22	90.9
Nevada	2,790,136	558,027	7,394	0.27	75.5
New Hampshire	1,323,459	264,692	5,661	0.43	46.8
New Jersey	8,899,339	1,779,868	15,222	0.17	116.9
New Mexico	2,085,287	417,057	7,193	0.34	58.0
New York	19,651,127	3,930,225	30,253	0.15	129.9
North Carolina	9,848,060	1,969,612	21,058	0.21	93.5
North Dakota	723,393	144,679	1,638	0.23	88.3
Ohio	11,570,808	2,314,162	30,662	0.26	75.5
Oklahoma	3,850,568	770,114	10,649	0.28	72.3
Oregon	3,930,065	786,013	18,172	0.46	43.3
Pennsylvania	12,773,801	2,554,760	25,896	0.20	98.7
Rhode Island	1,051,511	210,302	2,150	0.20	97.8
South Carolina	4,774,839	954,968	9,726	0.20	98.2
South Dakota	844,877	168,975	1,960	0.23	86.2
Tennessee	6,495,978	1,299,196	18,356	0.28	70.8
Texas	26,448,193	5,289,639	54,672	0.21	96.8
Utah	2,900,872	580,174	15,372	0.53	37.7
Vermont	626,630	125,326	2,313	0.37	54.2
Virginia	8,260,405	1,652,081	20,288	0.25	81.4
Washington	6,971,406	1,394,281	32,558	0.47	42.8
West Virginia	1,854,304	370,861	7,231	0.39	51.3
Wisconsin	5,742,713	1,148,543	12,093	0.21	95.0
Wyoming	582,658	116,532	1,962	0.34	59.4

Part 8 – What happens next?

There are a lot of steps before HR.4969 can become Law.

This explanation How Our Laws Are Made should be accurate: http://thomas.loc.gov/home/lawsmade.toc.html

A PDF of the whole thing is at: http://www.gpo.gov/fdsys/pkg/CDOC-110hdoc49/pdf/CDOC-110hdoc49.pdf

This is the Cliff Notes version: How a Bill Becomes a Law: http://votesmart.org/education/how-a-bill-becomes-law#.U82LApwfiWM

Even though there are a lot of steps before HR.4969 can become law I am afraid that it could become incorporated in another bill that the members of Congress will vote for without reading it. This could happen by an amendment at the last minute.

Keeping this from happening would require that someone read every bill that is introduced, considered, and amended.

Maybe every member of Congress should be contacted now.

Part 9 - Summary

1. The ARRL (American Radio Relay League) has been trying for years to get the FCC to extend PRB-1 to Home Owners Associations. They have recently (6/25/2014) been able to get Rep. Adam Kinzinger, [IL-16] to introduce HR.4969 Amateur Radio Parity Act of 2014 in the House Energy and Commerce Committee, which would do that.

2. PRB-1 would then override all Home Owners Association’s CC&Rs that prohibit ham antennas or towers for ham antennas, and require that they reasonably accommodate amateur communications.

However, PRB-1 does not define what is required to reasonably accommodate amateur communications. If the Home Owners Association and the radio amateur do not agree on what is reasonable, then what is reasonable is decided in a lawsuit in a U.S. District Court. What is reasonable is decided either by a Jury (if a Jury trial is requested) or by the Judge (if the right to a Jury trial is waived)

Storey County, Nevada, has an ordinance prohibiting communications towers greater than 45 ft in height. A local ham (Tom Taormina, K5RC) already had at least six towers, some of which were already greater than 45 ft in height. He had put them up over the years despite complaints by his neighbors. The towers were in violation of the County ordinance and did not have a Special Use Permit. Taormina then decided that he needed an additional tower, 195 ft in height, to reasonably accommodate his needs. This time the County told him no. Taormina sued Storey County in U.S. District Court for the District of Nevada (Case 3:2011cv00645, filed September 6, 2011). With the aid of the ARRL he threatened to bankrupt the County and the County Commissioners personally. The case never went to trial. The County gave in and gave him most of what he wanted. (Instead of a 195 ft tower he got a 175 ft tower.) His tower farm looms over the entrance to the community.

If a County cannot stand up to the ARRL Juggernaut, what hope does a Home Owners Association have?

3. The Constitutional Authority Statement given by Rep. Kinzinger quotes the Fourteen Amendment Section 1:

Congress has the power to enact this legislation pursuant to the following

the Fourteenth Amendment, Section 1 [Rights Guaranteed];

However, the quoted phrase is not in the Fourteenth Amendment. It is not in any other Amendment. It is nowhere in the Constitution. The phrase comes from the CRS Annotated Constitution.

The CRS Annotated Constitution, as useful as it is, is not the Constitution.

Even so, it is a taking under the Fifth and Fourteenth Amendments.

How is allowing your neighbor in an Association to put up a 195 ft tower a taking? After all, it’s on his property.

If your neighbor’s new 195 ft. tower lowers the value of your property, or makes it impossible to sell your property, then it is a taking.

This doesn’t even consider the damage it may do to your peace and serenity and your ability to quietly enjoy your home.

Does Congress have a truly compelling reason for interfering with private contracts?

No, all they have are the self-serving statements of the ARRL.

If HR.4969 passes the Government will face lawsuits under the Due Process provisions of the Fifth and Fourteenth Amendments. CRS and GAO can determine if there are less expensive (and onerous) ways to achieve the stated goal of providing communications during emergencies. They can determine the truthfulness of the ARRL’s statements. They can also determine if there are other, less oppressive, ways to achieve the stated goals, especially the goal of providing communications in emergencies.

After the reports are done, then the E&C Committee should have public hearings.

4. Look at the Numbers. As of 2012 about 20% of the American people lived in communities with Home Owners Associations (from the Community Associations Institute) That’s 63.4 million Americans. Today, it is probably slightly higher. In July 2014 there were about 775,000 hams in the U.S. with active ham licenses (from the FCC database). That represents about 0.25% of Americans. Some states have a higher or lower percentage of licensed hams. However, as an average there are 81 people in Home Owners Association for every ham.

That means that for every ham Congress makes happy by passing HR.4969 they will make at least 81 people unhappy, maybe very unhappy. And they will be unhappy in a very personal way because they will see the ham’s antenna/tower every day. I think the 81 people who are unhappy will express their unhappiness when they vote.

April 2, 2015

AA. HR.4969 died in Committee in the 113th Congress and has been resurrected in the 114th Congress as HR.1301

See : https://www.congress.gov/bill/114th-congress/house-bill/1301

Here it is again:

114th CONGRESS

1st Session

H. R. 1301

To direct the Federal Communications Commission to extend to private land use restrictions its rule relating to reasonable accommodation of amateur service communications.

IN THE HOUSE OF REPRESENTATIVES

March 4, 2015

Mr. Kinzinger of Illinois (for himself, Mr. Courtney, Mr. Frelinghuysen, Mr. Israel, Mr. Griffith, Mr. King of New York, Mr. Tonko, Mr. Womack, Mrs. Napolitano, Mr. Fortenberry, Mr. Walberg, Ms. Jenkins of Kansas, and Mr. Price of North Carolina) introduced the following bill; which was referred to the Committee on Energy and Commerce

A BILL

To direct the Federal Communications Commission to extend to private land use restrictions its rule relating to reasonable accommodation of amateur service communications.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title.

This Act may be cited as the “Amateur Radio Parity Act of 2015”.

SEC. 2. Findings.

Congress finds the following:

(1) More than 700,000 radio amateurs in the United States are licensed by the Federal Communications Commission in the amateur radio service.

(4) Federal Communications Commission regulations have for three decades prohibited the application to amateur radio stations of State and local regulations that preclude or fail to reasonably accommodate amateur service communications, or that do not constitute the minimum practicable regulation to accomplish a legitimate State or local purpose. Commission policy has been and is to permit erection of a station antenna structure at heights and dimensions sufficient to accommodate amateur service communications.

(5) The Federal Communications Commission has sought guidance and direction from Congress with respect to the application of the Commission’s limited preemption policy regarding amateur radio communications to private land use restrictions, including restrictive covenants.

SEC. 3. Accommodation of amateur service communications.

(1) precludes such communications;

(2) fails to reasonably accommodate such communications; or

(3) does not constitute the minimum practicable restriction on such communications to accomplish the legitimate purpose of the private entity seeking to enforce such restriction.

Again, the reason this is a bad idea is that:

1. PRB-1 is the FCC Rule that is the implementation of 47 C.F.R. § 97.15 .

2. Under PRB-1 local governments may not prohibit ham antennas or towers for ham antennas, but:

{Emphasis added}

If you have been reading this blog you know how that works.

If a County cannot stand up to the ARRL Juggernaut, what hope does a Home Owners Association have?

H.R. 1301 was introduced 03/04/2015 by Representative Kinzinger [R-IL-16] and contains the same nonsensical Constitutional Authority Statement as the one he used in HR.4969. The reason his statement is nonsensical is because it does not come from the Constitution. It comes from a commentary on the Constitution. I talked about it earlier. (Click here)

On 03/06/2015 it was referred to the House Energy and Commerce Subcommittee on Communications and Technology.

Here are the members for the 114th Congress.

Majority Members (Republicans)
Member Name	DC Phone	DC FAX	Contact Form
Greg Walden (R-OR) [Chairman]	202-225-6730	202-225-5774	https://walden.house.gov/index.cfm?sectionid=117§ …
Bob Latta (R-OH)	202-225-6405	202-225-1985	http://latta.house.gov/contact/
John Shimkus (R-IL)	202-225-5271	202-225-5880	http://shimkus.house.gov/contact/email-me
Marsha Blackburn (R-TN)	202-225-2811	202-225-3004	https://blackburn.house.gov/contactform/default.aspx
Steve Scalise (R-LA)	202-225-3015	202-226-0386	https://scaliseforms.house.gov/contact/
Leonard Lance (R-NJ)	202-225-5361	202-225-9460	http://lance.house.gov/contact/email-me
Brett Guthrie (R-KY)	202-225-3501	202-226-2019	http://brettguthrieforms.house.gov/contact/
Pete Olson (R-TX)	202-225-5951	202-225-5241	https://olson.house.gov/contact/email-me
Mike Pompeo (R-KS)	202-225-6216	202-225-3489	http://pompeo.house.gov/contact/
Adam Kinzinger (R-IL)	202-225-3635	202-225-3521	http://kinzinger.house.gov/contact/
Gus M. Bilirakis (R-FL)	202-225-5755	202-225-4085	http://bilirakis.house.gov/contact/email-me
Bill Johnson (R-OH)	202-225-5705	202-225-5907	http://billjohnson.house.gov/contact/
Billy Long (R-MO)	202-225-6536	202-225-5604	https://longforms.house.gov/email-billy
Chris Collins (R-NY)	202-225-5265	202-225-5910	http://chriscollins.house.gov/contact/email-me
Joe Barton (R-TX)	202-225-2002	202-225-3052	https://joebarton.house.gov/contact1

Minority Members (Democrats)
Member Name	DC Phone	DC FAX	Contact Form
Anna G. Eshoo (D-CA) [Ranking Member]	202-225-8104	202-225-8890	http://eshoo.house.gov/contact/
Mike Doyle (D-PA)	202-225-2135	202-225-3084	https://doyle.house.gov/contact-me/email-me
Peter Welch (D-VT)	202-225-4115	202-225-6790	https://welch.house.gov/email-me
John Yarmuth (D-KY)	202-225-5401	202-225-5776	http://yarmuth.house.gov/index.cfm?sectionid=124§ …
Yvette D. Clarke (D-NY)	202-225-6231	202-226-0112	http://clarke.house.gov/contact/email-me
Dave Loebsack (D-IA)	202-225-6576	202-226-0757	https://loebsack.house.gov/forms/writeyourrep/
Bobby L. Rush (D-IL)	202-225-4372	202-226-0333	http://rush.house.gov/contact/email-me
Diana DeGette (D-CO)	202-225-4431	202-225-5657	http://degette.house.gov/contact/send-me-an-email/ema …
G. K. Butterfield, Jr. (D-NC)	202-225-3101	Not Available	http://butterfield.house.gov/contact/email-me
Doris Matsui (D-CA)	202-225-7163	202-225-0566	https://matsui.house.gov/email-representative-matsui
Jerry McNerney (D-CA)	202-225-1947	202-225-4060	http://mcnerney.house.gov/contact/email-me
Ben Ray Lujan (D-NM)	202-225-6190	202-226-1528	https://lujan.house.gov/issue-subscribe

Here is what the ARRL said in their ARRL Letter for March 5, 2015 (http://www.arrl.org/arrlletter?issue=2015-03-05):

"The Amateur Radio Parity Act of 2015" -- H.R.1301 -- has been introduced in the US House of Representatives. The measure would direct the FCC to extend its rules relating to reasonable accommodation of Amateur Service communications to private land use restrictions. US Rep Adam Kinzinger (R-IL) introduced the bill on March 4 with 12 original co-sponsors from both sides of the aisle -- seven Republicans and five Democrats. Kinzinger also sponsored "The Amateur Radio Parity Act of 2014, which died at the end of the 113th Congress. H.R. 1301 is an essentially identical piece of legislation.

"The introduction of H.R. 1301 with so many original co-sponsors, so early in this session of Congress, is very encouraging," said ARRL President Kay Craigie, N3KN. "Several additional members of Congress already have agreed to be co-sponsors. This bill has momentum, but introduction is only the first step. Many of the next steps will be taken as ARRL members contact their US Representatives urging co-sponsorship and thanking them as they sign on to the bill."

If Congress approves the legislation, and it is signed by the president, H.R. 1301 would require the FCC to amend its Part 97 Amateur Service rules to apply the three-part test of the PRB-1 federal pre-emption policy to include homeowners' association regulations and deed restrictions, often referred to as "covenants, conditions, and restrictions" (CC&Rs). At present, PRB-1 only applies to state and local zoning laws and ordinances. The FCC has been reluctant to extend the same legal protections to include such private land-use agreements without direction from Congress.

H.R. 1301 has been referred to the House Energy and Commerce Committee. Rep Greg Walden, W7EQI (R-OR), chairs that panel's Communications and Technology Subcommittee, which will consider the measure. The League had worked with Walden on the 2014 bill during the 113th Congress.

Among H.R. 1301 initial co-sponsors is Rep Joe Courtney (D-CT), who attended the ARRL National Centennial Convention last summer to speak with League officials and those attending the event about the earlier bill.

Craigie encouraged ARRL members to urge their US House members to sign on to the bill as a co-sponsor. If the House member is already a co-sponsor, call the member's local office or send an e-mail via the member's official website to express their thanks. She called on League members to encourage other hams to do the same, and to be sure to refer to the bill by its number, H.R. 1301. The ARRL has an H.R. 1301 resources page on its website

"Remember what those pile-ups on the W1AW portable stations sounded like last year?" Craigie said. "Let's be that avid in calling for even greater support in Congress for this essential legislation."

Here is the ARRL’s Legislative Update – Issue # 8 for March 2015: http://www.arrl.org/files/file/Legislative%20Update%20Newsletters/Issue%208.pdf (For a mirrored copy click here)

The ARRL wants you to contact your legislator.

I think you should, too.

Ask him/her why they are putting the ARRL’s interests above the interests of the vast majority of their constituents.

AB. May 2015 - The Comstock Memorial Station Chronicles

Taormina established the Comstock Memorial Station as a Nevada non-profit on 8/4/2011. Taormina is the President as well as the Registered Agent. See cms_nvsos_2015_0515.pdf

He applied to the IRS to have the Comstock Memorial Station classified as a 501(c)(3) entity, and that was granted in April 2014.

(See http://www.orgcouncil.com/nv/reno/comstock-memorial-station-899.php)

The advantages of being a 501(c)(3) entity are that:

1. You do not pay federal taxes on corporate income.

2. An individual's or company’s charitable contributions to this entity are tax-deductible.

(See http://grantspace.org/tools/knowledge-base/Nonprofit-Management/Establishment/pros-and-cons)

Non-profit organizations classified as 501(c)(3) by the IRS, or those seeking 501(c)(3) status, are required to file Form 990 tax returns, and these tax returns are public information.

There are several free sources on the Web, such as:

1. http://foundationcenter.org/findfunders/990finder/

2. www.guidestar.org - Requires registration, but is free for basic documents.

Here are the Comstock Memorial Station’s Form 990s so far:

CMS Form 990 - 2012 cms_form990_2012.pdf

CMS Form 990 - 2013 cms_form990_2013.pdf

CMS Form 990 - 2014 cms_form990_2014.pdf

In CMS Form 990 for 2012 (the first full year of operation):

1. Part X Balance Sheet Line 10a shows Land, buildings and equipment cost or other basis of $774,930.

(See Schedule D Part VI.)

Where is this Land, buildings and equipment located?

The address of the Comstock Memorial Station is 370 Panamint Rd, Reno, NV 89521. It is also the address given as the address for the principal officer, Thomas Taormina. This is a mailing address. (Although it says Reno, it is actually located in Storey County.)

The Storey County Assessor’s Database does not show The Comstock Memorial Station as owning property in Storey County.

The Storey County Recorder’s Database does not show any documents recorded by or for The Comstock Memorial Station.

For reference:

Storey County Recorder Database: http://www.storeycountynv.org:1401/cgi-bin/diw200

Storey County Tax Records Database: http://www.storeycountynv.org:1401/cgi-bin/tcw100p

Storey County Assessor Database: http://www.storeycountynv.org:1401/cgi-bin/asw100

Did Taormina transfer the title to his house to the Comstock Memorial Station without recording it?

Or, is all of the $774,930 in equipment?

If it is, does that include the towers?

If Taormina gave his house (or even just the towers) to the Comstock Memorial Station then he has violated the terms of the Special Use Permit which specifically states:

3. No transfer of Rights.

{Emphasis added.}

(See doc033-1.pdf Exhibit (SUP approved by Board of Commissioners on May 21.)

However, the Special Use Permit also requires that anti-climbing devices be installed at each tower.

11. Restrictions on Mounted Devices; Anti-climbing Required.

{Emphasis added.}

As of this entry Taormina does not appear to have installed anti-climbing devices at each tower. The County has been informed of this and refuses to do anything.

Now, back to the Comstock Memorial Station Form 990 for 2012.

2. Part I Line 12 shows a Total Revenue of $190,556 ($185,500 from Contributions and Grants, $13 Interest, and $5,043 from Insurance Proceeds.)

How did The Comstock Memorial Station acquire assets of $774,930 in its first year of operation when it reported Total Revenue of only $190,556?

______________________

Just for grins I am also posting the Form 990s for the American Radio Relay League (ARRL) for 2007 - 2013 and for the ARRL Foundation for 2007-2012. I am not sure what the ARRL Foundation actually does. (And for some reason the Form 990 for 2013 does not seem to be available.)

American Radio Relay League - Form 990

2007 arrl_form990_2007.pdf

2008 arrl_form990_2008.pdf

2009 arrl_form990_2009.pdf

2010 arrl_form990_2010.pdf

2011 arrl_form990_2011.pdf

2012 arrl_form990_2012.pdf

2013 arrl_form990_2013.pdf

ARRL Foundation - Form 990

2007 arrl_foundation_form990_2007.pdf

2008 arrl_foundation_form990_2008.pdf

2009 arrl_foundation_form990_2009.pdf

2010 arrl_foundation_form990_2010.pdf

2011 arrl_foundation_form990_2011.pdf

2012 arrl_foundation_form990_2012.pdf

AC. July 4, 2015 The U.S. Senate has introduced its version of HR.1301

The Senate’s version of HR.1301 is S.1685. See: https://www.congress.gov/bill/114th-congress/senate-bill/1685/all-info

The bill was introduced on 6/15/2015 by Sen. Roger Wicker [R-MS]: https://www.congress.gov/member/roger-wicker/W000437

The bill’s sole co-sponsor (so far) is Connecticut Democratic Sen. Richard Blumenthal: http://www.blumenthal.senate.gov/

The bill has been referred to the Senate Commerce, Science, and Transportation Committee: http://www.commerce.senate.gov/public/

The Committee Chairman is Sen. John Thune (R-SD): http://www.thune.senate.gov/public/

The Ranking Member is Sen. Bill Nelson (D-FL): http://www.billnelson.senate.gov/

Here are the members of the Senate Commerce, Science, and Transportation Committee:

Majority Members

Member Name	DC Phone	DC Fax	Contact Form

Chairman John Thune South Dakota	(202) 224-2321	202-228-5429	http://www.thune.senate.gov/public/index.cfm/contact

Senator Roger Wicker Mississippi	(202) 224-6253	202-228-0378	http://www.wicker.senate.gov/public/index.cfm/contact

Senator Roy Blunt Missouri	(202) 224-5721	202-224-8149	http://www.blunt.senate.gov/public/index.cfm/contact-roy

Senator Marco Rubio Florida	(202) 224-3041	202-228-0285	http://www.rubio.senate.gov/public/index.cfm/contact

Senator Kelly Ayotte New Hampshire	(202) 224-3324	202-228-0399	http://www.ayotte.senate.gov/?p=contact

Senator Dean Heller Nevada	(202) 224-6244	202-228-6753	http://www.heller.senate.gov/public/index.cfm/contact-form

Senator Ted Cruz Texas	(202) 224-5922	Not Available	http://www.cruz.senate.gov/?p=email_senator

Senator Deb Fischer Nebraska	(202) 224-6551	202-228-1325	http://www.fischer.senate.gov/public/index.cfm/contact

Senator Dan Sullivan Alaska	(202) 224-3004	202-224-6501	http://www.sullivan.senate.gov/content/contact-dan

Senator Jerry Moran Kansas	(202) 224-6521	202-228-6966	http://www.moran.senate.gov/public/index.cfm/e-mail-jerry

Senator Ron Johnson Wisconsin	(202) 224-5323	202-228-6965	http://www.ronjohnson.senate.gov/public/index.cfm/contact

Senator Cory Gardner Colorado	(202) 224-5941	202-224-6524	http://www.gardner.senate.gov/content/contact-cory

Senator Steve Daines Montana	(202) 224-2651	202-228-1236	http://www.daines.senate.gov/connect/email-steve

Minority Members

Member Name	DC Phone	DC Fax	Contact Form

Senator Bill Nelson Florida	(202) 224-5274	202-228-2183	http://www.billnelson.senate.gov/contact-bill

Senator Maria Cantwell Washington	(202) 224-3441	202-228-0514	http://www.cantwell.senate.gov/public/index.cfm/email-maria

Senator Claire McCaskill Missouri	(202) 224-6154	202-228-6326	http://www.mccaskill.senate.gov/contact

Senator Amy Klobuchar Minnesota	(202) 224-3244	202-228-2186	http://www.klobuchar.senate.gov/public/contact-amy

Senator Richard Blumenthal Connecticut	(202) 224-2823	202-224-9673	http://www.blumenthal.senate.gov/contact/

Senator Brian Schatz Hawaii	(202) 224-3934	202-228-1153	http://www.schatz.senate.gov/contact

Senator Ed Markey Massachusetts	(202) 224-2742	Not Available	http://www.markey.senate.gov/contact

Senator Cory Booker New Jersey	(202) 224-3224	202-224-8378	http://www.booker.senate.gov/?p=contact

Senator Tom Udall New Mexico	(202) 224-6621	202-228-3261	http://www.tomudall.senate.gov/?p=contact

Senator Joe Manchin West Virginia	(202) 224-3954	202-228-0002	http://www.manchin.senate.gov/public/index.cfm/contact-form

Senator Gary Peters Michigan	(202) 224-6221	202-224-7387	http://www.peters.senate.gov/content/contact-gary

If you live in a community with a Home Owners Association, whether it is a condominium or a rural community like mine, you should care about this.

Contact your Representative, and now your Senator.

Tell him/her that your Home Owners Association cannot afford to pay an attorney to defend your Association in U.S. District Court against a ham who insists he needs a 200ft tower (maybe on top of your clubhouse) so he can have reliable communications with Europe and Asia and anything less than that does not reasonably accommodate his needs, and whose own legal expenses are being paid for by (perhaps) the ARRL and others.

AD. September 18, 2015 - My Letter to Senator Heller

Nevada Senator Dean Heller is a member of the Senate Commerce, Science, and Transportation Committee. I live in Nevada so I sent him a fax. Click Here.

The reason I did this was because the ARRL Legislative Update Issue #9 (July 15) contains the following story by ARRL President Kay Craigie:

Legislative Update – Issue # 9

July 2015 – page 2

A message from ARRL President Kay Craigie, N3KN

My friend John Thomas, W3FAF, now a Silent Key, used to tell a funny story about being a ham as a young boy and operating from his upstairs bedroom. He ran a wire antenna out the window and fastened it to his mother’s favorite tree. Unfortunately, he didn’t do it the right way and damaged the tree. “That,” he said with a wry smile, “didn’t go over very well.” What tales, tall or otherwise, have you heard about the adventures of young people learning to be hams? Maybe you have told some of those stories about yourself.

You and I have to make sure that today’s youngsters will have their own stories to tell. What if their parents have bought houses in neighborhoods with deed restrictions prohibiting antennas? Those kids’ interest in ham radio gained from school, Scouts, or family friends will have no way to blossom into the life-changing experience of being radio amateurs. ARRL members are working together so that both today’s Amateurs and the kids who will be Amateurs in the future have the chance to operate from their homes.

(The ARRL Legislative Updates are here: http://www.arrl.org/legislative-update-newsletter.)

After relating this story to Senator Heller I said:

This Kid is not the face of ham radio.

The face of ham radio is Tom Taormina (K5RC) in the Virginia City Highlands (where I live).

Then I gave a very short summary of what Taormina did.

I suggested to Senator Heller that:

If you want see who is really the poster child for ham radio (Taormina or The Kid) I suggest you amend S.1685 by adding the following language:

1. No rule or law restricting the height of a tower to no more than 75 ft will be considered unreasonable.

2. No rule or law prohibiting a homeowner from having more than one tower per parcel of land will be considered unreasonable.

If the ARRL screams bloody murder then you will know that they are being disingenuous with you and that The Kid is a Trojan horse.

I think I was very generous in using a maximum tower height of 75 feet.

And Craigie should be ashamed of herself for using the Kid Tactic (It’s for the Children).

You should also look at Craigie’s statement in the ARRL Letter for September 10, 2015 (http://www.arrl.org/arrlletter?issue=2015-09-10):

Opponents' Representations of Parity Act's Purpose "Just Not True," ARRL President Says

ARRL President Kay Craigie, N3KN, has taken strong exception to certain claims being made by community association organizations about the Amateur Radio Parity Act of 2015 -- H.R. 1301 and S. 1685. In an interview with Ham Radio Now host Gary Pearce, KN4AQ, during the ARRL Roanoke Division Convention in Shelby, North Carolina over Labor Day weekend, President Craigie stressed that passage of the legislation is critical to ensuring the future of Amateur Radio. And she described as "false" recent assertions that the bills' passage would prevent community associations from requiring prior approval for 70-foot ham radio towers and from creating reasonable processes and aesthetic guidelines.

This is more of a Red Herring or a Straw Man than another Trojan Horse. See https://en.wikipedia.org/wiki/Red_herring. A Red Herring is similar to a McGuffin. See https://en.wikipedia.org/wiki/MacGuffin. (In the film The Maltese Falcon, the Falcon was a McGuffin. I hope I didn’t spoil it for you.)

The issue here is not about requiring prior approval.

This issue is about hams (with ARRL support) suing Home Owners Associations to get whatever they want. That’s what Taormina did.

And later:

She also said that the Parity Act does not represent any sort of federal government or FCC takeover or preemption of HOAs. "It does not take their authority to regulate away," she said. "It only takes away their authority to say 'no.' There's a big difference."

Yes, it does represent a federal government preemption of HOAs. FCC PRB-1 is part of the Code of Federal Regulations (CFR) and has the force of law. See http://www.archives.gov/about/regulations/

If you cannot afford the lawsuit (in U.S. District Court) brought by hams (with the help of the ARRL) then you cannot afford to enforce any rules for ham towers and antennas in your HOA.

You only get as much justice as you can afford to pay for.

How much justice can your HOA afford?

AE - March 4, 2016 An Interesting Case - Jeffrey J. DEPOLO v. BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP et al.

Today I received the DRAFT AGENDA, ARRL EXECUTIVE COMMITTEE MEETING - 8:30 AM CST March 12, 2016 - DFW

Item 5 is Local antenna/RFI cases

5.1. Jeffrey DePolo v. Board of Supervisors of Treddyfrin Township et al. (status of 3rd Circuit United States Court of Appeals consideration of USDC dismissal of Amateur PRB-1 complaint for failure to state a claim upon which relief may be granted; Amicus Brief filed for ARRL August 17, 2015.)

DePolo is appealing the ruling of the U.S. District Court For the Eastern District of Pennsylvania. Appeals from the USDC for the E.D. Pennsylvania go to the United States Court of Appeals for the 3rd Circuit: http://www.ca3.uscourts.gov/

The case being appealed is:

Jeffrey J. DEPOLO v. BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP et al.

United States District Court, E.D. Pennsylvania.

105 F.Supp.3d 484 (2015)

I looked it up and found it at http://www.leagle.com/decision/In%20FDCO%2020150519B60/Depolo%20v.%20Board%20of%20Supervisors%20of%20Tredyffrin%20Township#

For a local copy click here.

It shows how to fight a ham’s (and the ARRL’s) contention that PRB-1 preempts local governments from regulating the height of a tower that the ham wants to put up.

This part is really good. (The phase “our Court of Appeals” would mean the 3rd Circuit U. S. Court of Appeals.)

We turn now to PRB-1, the FCC ruling on which DePolo hangs his preemption argument. In PRB-1, a declaratory ruling made at the American Radio Relay League's behest, the FCC recognized the strong federal interest in promoting amateur radio operators, particularly for emergency communication. PRB-1, 101 F.C.C.2d at 959. "Upon weighing these interests, we believe a limited preemption policy is warranted. State and local regulations that operate to preclude amateur communications in their communities are in direct conflict with federal objectives and must be preempted." Id. at 960. At the same time, the agency refused to entirely preempt the field by specifying height limitations or local mechanisms to apply for variances or conditional use permits. Id. Instead, the agency concluded that local ordinances involving "placement, screening, or height of antennas based on health, safety, or aesthetic considerations must ... accommodate reasonably" amateur radio communications and "represent the minimum practicable regulation" for accomplishing the local purpose. Id.

"The cornerstone on which we will predicate our decision is that a reasonable accommodation may be made between the two sides." Id. at 959.

Our Court of Appeals has not construed PRB-1's limited preemption. Federal courts that have considered PRB-1's preemptive effect have upheld it in two circumstances. See Pentel, 13 F.3d at 1263 (citing cases). A local ordinance that bans or imposes fixed height restrictions on amateur radio antennas runs afoul of PRB-1 and the federal regulation therefore facially preempts such local regulation. See, e.g., Evans, 994 F.2d at 762; see also Bodony v. Inc. Village of Sands Point, 681 F.Supp. 1009 (E.D.N.Y.1987) (voiding building ordinance's absolute height limitation as preempted by PRB-1). Second, PRB-1 may preempt a zoning ordinance that is not applied in a way that reasonably accommodates amateur radio communications. But the courts have also concluded that PRB-1's limited purpose is to promote the federal interest in amateur radio operations, not to grant an individual operator a right to erect any antenna he chooses. Howard v. City of Burlingame, 937 F.2d 1376, 1380 (9th Cir.1991).

Regrettably, the FCC offers little guidance about "reasonable accommodation" in the context of local zoning ordinances.

[W]e recognize that a local community that wants to preserve residential areas as livable neighborhoods may adopt zoning regulations that forbid the construction and installation in a residential neighborhood of the type of antenna that is commonly and universally associated with those that one finds in a factory area or an industrialized complex. Although such a regulation could constrain amateur communications, we do not view it as failing to provide reasonable accommodation to amateur communications.

I have emphasized:

The cornerstone on which we will predicate our decision is that a reasonable accommodation may be made between the two sides." Id. at 959.

But the courts have also concluded that PRB-1's limited purpose is to promote the federal interest in amateur radio operations, not to grant an individual operator a right to erect any antenna he chooses. Howard v. City of Burlingame, 937 F.2d 1376, 1380 (9th Cir.1991).

It is too bad that Storey County didn’t make this argument in Taormina’s case. It is also too bad that Storey County allowed Taormina to have a secret trial in the Magistrate Judge’s chambers instead of having everything out in public, the way the U.S. Constitution requires.

Here is what ARRL said about the case in Doc 17: Click here.

Depolo was represented by Robert B. Famiglio, Media, PA, pro se. Since pro se means “for oneself” I guess it means he was representing DePolo as an individual, not for his law firm (http://www.famiglioassociates.com/)

Who is Robert B. Famiglio?

According to a press release from ARRL (01/12/2015), Mr. Famiglio is the Atlantic Division Vice Director. (From http://www.arrl.org/news/arrl-board-of-directors-annual-meeting-set-for-january-16-17)

Two new faces will be among the contingent of Vice Directors at this week’s meeting: Bob Famiglio, K3RF, was elected last fall to succeed Abernethy as Atlantic Division Vice Director, and Art Zygielbaum, K0AIZ, was appointed recently to fill the Midwest Division Vice Director vacancy, created when Blocksome was elected as Director.

It will be interesting to see how the Appeal turns out.

I wonder what this is costing Tredyffrin Township, Pennsylvania? (http://www.tredyffrin.org)?

AF. September 15, 2016 - The House of Representatives Passes HR.1301

Back to HR.1301: https://www.congress.gov/bill/114th-congress/house-bill/1301

The House of Representatives passed HR.1301 on September 12 but there were two amendments.

https://www.congress.gov/bill/114th-congress/house-bill/1301/text/eh

114th CONGRESS

2d Session

H. R. 1301

AN ACT

To direct the Federal Communications Commission to amend its rules so as to prohibit the application to amateur stations of certain private land use restrictions, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title.

This Act may be cited as the “Amateur Radio Parity Act of 2016”.

SEC. 2. Findings.

Congress finds the following:

(1) More than 730,000 radio amateurs in the United States are licensed by the Federal Communications Commission in the amateur radio services.

(3) There is a strong Federal interest in the effective performance of amateur stations established at the residences of licensees. Such stations have been shown to be frequently and increasingly precluded by unreasonable private land use restrictions, including restrictive covenants.

(4) Federal Communications Commission regulations have for three decades prohibited the application to stations in the amateur service of State and local regulations that preclude or fail to reasonably accommodate amateur service communications, or that do not constitute the minimum practicable regulation to accomplish a legitimate State or local purpose. Commission policy has been and is to require States and localities to permit erection of a station antenna structure at heights and dimensions sufficient to accommodate amateur service communications.

(5) The Commission has sought guidance and direction from Congress with respect to the application of the Commission’s limited preemption policy regarding amateur service communications to private land use restrictions, including restrictive covenants.

(6) There are aesthetic and common property considerations that are uniquely applicable to private land use regulations and the community associations obligated to enforce covenants, conditions, and restrictions in deed-restricted communities. These considerations are dissimilar to those applicable to State law and local ordinances regulating the same residential amateur radio facilities.

(7) In recognition of these considerations, a separate Federal policy than exists at section 97.15(b) of title 47, Code of Federal Regulations, is warranted concerning amateur service communications in deed-restricted communities.

(8) Community associations should fairly administer private land use regulations in the interest of their communities, while nevertheless permitting the installation and maintenance of effective outdoor amateur radio antennas. There exist antenna designs and installations that can be consistent with the aesthetics and physical characteristics of land and structures in community associations while accommodating communications in the amateur radio services.

SEC. 3. Application of private land use restrictions to amateur stations.

(a) Amendment of FCC rules.—Not later than 120 days after the date of the enactment of this Act, the Federal Communications Commission shall amend section 97.15 of title 47, Code of Federal Regulations, by adding a new paragraph that prohibits the application to amateur stations of any private land use restriction, including a restrictive covenant, that—

(1) on its face or as applied, precludes communications in an amateur radio service;

(2) fails to permit a licensee in an amateur radio service to install and maintain an effective outdoor antenna on property under the exclusive use or control of the licensee; or

(3) does not constitute the minimum practicable restriction on such communications to accomplish the lawful purposes of a community association seeking to enforce such restriction.

(b) Additional requirements.—In amending its rules as required by subsection (a), the Commission shall—

(1) require any licensee in an amateur radio service to notify and obtain prior approval from a community association concerning installation of an outdoor antenna;

(2) permit a community association to prohibit installation of any antenna or antenna support structure by a licensee in an amateur radio service on common property not under the exclusive use or control of the licensee; and

(3) subject to the standards specified in paragraphs (1) and (2) of subsection (a), permit a community association to establish reasonable written rules concerning height, location, size, and aesthetic impact of, and installation requirements for, outdoor antennas and support structures for the purpose of conducting communications in the amateur radio services.

SEC. 4. Affirmation of limited preemption of State and local land use regulation.

The Federal Communications Commission may not change section 97.15(b) of title 47, Code of Federal Regulations, which shall remain applicable to State and local land use regulation of amateur service communications.

SEC. 5. Definitions.

In this Act:

(1) COMMUNITY ASSOCIATION.—The term “community association” means any non-profit mandatory membership organization composed of owners of real estate described in a declaration of covenants or created pursuant to a covenant or other applicable law with respect to which a person, by virtue of the person’s ownership of or interest in a unit or parcel, is obligated to pay for a share of real estate taxes, insurance premiums, maintenance, improvement, services, or other expenses related to common elements, other units, or any other real estate other than the unit or parcel described in the declaration.

(2) TERMS DEFINED IN REGULATIONS.—The terms “amateur radio services”, “amateur service”, and “amateur station” have the meanings given such terms in section 97.3 of title 47, Code of Federal Regulations.

Passed the House of Representatives September 12, 2016.

Attest:

Clerk.

They changed the title and added a bunch of stuff. Here is the comparison.

As Introduced

Amended and passed

114th CONGRESS

1st Session

H. R. 1301

To direct the Federal Communications Commission to extend to private land use restrictions its rule relating to reasonable accommodation of amateur service communications.

IN THE HOUSE OF REPRESENTATIVES

March 4, 2015

A BILL

To direct the Federal Communications Commission to extend to private land use restrictions its rule relating to reasonable accommodation of amateur service communications.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title.

This Act may be cited as the “Amateur Radio Parity Act of 2015”.

SEC. 2. Findings.

Congress finds the following:

(1) More than 700,000 radio amateurs in the United States are licensed by the Federal Communications Commission in the amateur radio service.

~~SEC. 3. Accommodation of amateur service communications.~~

~~(1) precludes such communications;~~

~~(2) fails to reasonably accommodate such communications; or~~

~~(3) does not constitute the minimum practicable restriction on such communications to accomplish the legitimate purpose of the private entity seeking to enforce such restriction.~~