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Letter from Richard B. Nettler (Robins, Kaplan, Miller & Ciresi L.L.P.) regarding antenna zoning regulations

Submitted as part of Ann Hume Loikow's testimony before the Zoning Commission

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February 5, 2001

VIA FACSIMILE
Stop the Tower Citizens Coalition
c/o Ms. Ann Hume Loikow
3404 Rodman Street, N.W.
Washington, D.C. 20008

Re: Antenna Zoning Regulations

Dear Ms. Loikow:

We have acted as counsel to Stop the Tower Citizens Coalition, with respect to the application and interpretation of the zoning regulations to the construction of communications towers. In such capacity we have reviewed the following:

1. February 3, 1984, memo from the Office of Planning to the Zoning Commission on the Roof Structures Text Amendment;
2. May 16, 1984, memo from the Office of Planning to the Zoning Commission on the Roof Structures Text Amendment;
3. October 12, 1984, memo from the Office of Planning to the Zoning Commission on Case No. 84-10 (Penthouse and Antennas Text Amendment);
4. October 22, 1984, Zoning Commission Notice of Public hearing and Proposed Text for Case No. 84-10;
5. October 2, 1985, memo from the Office of Planning to the Zoning Commission on its Final Report on Case No. 84-10;
6. May 9, 1986, memo from the Office of Planning to the Zoning Commission on its Final Report on Case No. 84-10;
7. May 19, 1986, Statement of the National Capital Planning Commission on Case No. 84-10;
8. May 19, 1986, Zoning Commission Notice of Public hearing and Proposed Text for Case No. 84-10;
9. October 27, 1986, Summary Abstract of the Office of Planning to the Zoning Commission on Case No. 84-10 (Antennas Text Amendment);
10. February 17, 1987, Draft Antenna Regulations and Summary Chart of the Office of Planning to the Zoning Commission on Case No. 84-10 (Antennas Text Amendment);
11. May 7, 1987, Draft Antenna Regulations and Summary Chart of the Office of Planning to the Zoning Commission on Case No. 84-10 (Antennas Text Amendment);
12. January 8, 1988, Zoning Commission Notice of Proposed Rulemaking on Antennas;
13. Comments of the Office of Planning on those comments received through February 8, 1988 in response to notice of final rulemaking on antenna regulations;
14. August 30, 1988, Memo of the Office of the Corporation Counsel to the Zoning Commission on the Proposed Regulations Relating to the Size and Location of Antennas;
15. Zoning Commission Order No. 587, Case No. 84-10 (February 24, 1989);
16. October 20, 2000, Zoning Commission Notice of Proposed Rulemaking on editorial amendments to the Zoning Regulations, Case No. 00-04;
17. January 18, 2000, Report from the Office of Planning to the Zoning Commission on proposed zoning text amendments regarding definition of and development standards for Antenna Towers in all zone districts; and
18. December 8, 2000, Zoning Commission Notice of Proposed Rulemaking on development standards for antenna towers, Case No. 00-29TA.

We have made such inquiry and investigation and examined such other and additional documents, writings, certificates, statutes, authorizations and other matters as we have deemed necessary and appropriate for the purpose of rendering the opinions of this firm as set forth in this letter.

In rendering our legal opinions herein we have relied on the documents discussed herein. We have conducted such investigations of law as we deemed necessary or appropriate with respect to the opinions expressed herein. Except to the extent expressly set forth herein, we have not undertaken any independent investigations to determine the existence or absence of facts, none having been expected or requested of us, and no inference as to our knowledge of the existence or absence of such facts should be drawn from our representation of you.

In basing the opinions and other matters set forth herein on "our knowledge," the words "our knowledge" signify that, after due inquiry, no information has come to our attention during the course of our representation of you that would give us actual knowledge or actual notice that any such opinions or other matters are not accurate or that any of the documents or certificates on which we have relied are not accurate and complete.

Consistent with the foregoing, it is our opinion that the Zoning Commission intended to delete § 701.6(g) of the Zoning Regulations, 11 DCMR, when it adopted, in 1989, text amendments pertaining to antennas. In that regard, to the extent § 701.6(g) permits antennas of any height, location and density in a commercial district, that authorization, which predated the 1989 amendments to the Zoning Regulations was specifically altered. Instead, in its 1989 Order, the Zoning Commission established specific guidelines for antennas in every residential, mixed-use and commercial district and additionally provided that, to the extent any antenna proposal exceeded any of the limitations established, the applicant was to seek a special exemption from the Board of Zoning Adjustment. As the Zoning Commission stated in its Order, the general framework of the regulatory scheme it created was to (1) allow, as an unqualified matter of right in all zone districts, those antennas which met specific requirements; (2) to allow, as a qualified matter of right, antennas which met other characteristics after review by the Zoning Administrator; and (3) to allow any other antenna as a special exception in all districts. The special exception criterion applicable to all commercial broadcast antennas in all districts is contained in sections 211 and 212 of the Zoning Regulations. Accordingly, it is our opinion that § 701.6(g) has no legal effect.

Anything to the contrary, expressly stated or implied, notwithstanding, each of the opinions we express is subject to the following further qualifications whether or not such opinions refer to such qualifications:

(i) This opinion is based solely upon those documents of which we are aware and upon laws which are in effect as of the date hereof, and we assume no obligation to supplement this opinion if any applicable laws change after the date hereof or if we become aware of any facts or documents that might change this opinion after the date hereof.

(ii) The opinions expressed herein are limited to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly stated. The opinions are solely for the benefit of you in connection with your participation in proceedings before the Zoning Commission dealing with antenna regulations and for no other purpose, and may not be relied on by or communicated to any other party, except the Zoning Commission of the District of Columbia, without the express prior written consent of Robins, Kaplan, Miller & Ciresi L.L.P.

Sincerely,

ROBINS, KAPLAN, MILLER & CIRESI L.L.P.

Richard B. Nettler