|Canada's National Amateur Radio Society|
|"We're ALL about Amateur Radio!"|
by Tim Ellam VE6SH
I just purchased a tower and beam. Do I have to apply for a development permit?
I receive calls like that at least once a week from amateurs wondering what the state of the law is with respect to towers. I will try in this article to answer some of the common questions that new (and not so new) amateurs have with respect to this thorny issue.
What is the first thing I should do?
The first thing I tell amateurs is to put themselves in the right frame of mind. You worked hard for your amateur licence and are entitled to operate within the limits of that licence.
Generally speaking, if you want to operate on HF, this means that you are entitled to erect some sort of directional antenna even if you live in an urban neighbourhood. Most amateurs I speak to seem to be reluctant to install a tower due to the anticipated reaction from their neighbours.
My response has been to point out that a reasonable antenna installation is an ordinary accessory use of a residence and secondly, one's neighbours' response to the installation may surprise them.
Certainly, the community will probably not be overjoyed that you are putting up an antenna, but you probably feel the same way when your neighbours park an RV in their backyard or erect some kind of elaborate play centre. If one takes the time to educate their neighbours, you may find their response is surprising.
Okay, what should I not do?
Do not follow the advice of some pundits and put the tower up without following the guidelines in this article. If you do not consult with your local authority and your neighbours, Industry Canada has the right to direct that you dismantle the structure. The second thing you should refrain from doing is calling it a "tower". Although I will use the word in this article, the correct term is "support antenna structure". I found that bandying around the use of the word "tower" has a different meaning and image in the minds of neighbours and local authorities.
What do you mean by a reasonable installation?
While "reasonable" is open to interpretation, it would be my suggestion that for a normal urban lot that you restrict yourself to a tower in the 48 to 75 foot range with one HF Yagi or Quad antenna and the usual VHF/UHF antenna. This type of installation is common for most amateurs and should meet the argument that you are operating "within the limits of your licence".
It will be hard to justify the installation of stacked yagi antennas on a normal city lot, although I have known some people who have got away with it!
So far, so good. What is the next thing I should do?
Determine whether or not the municipality you live in has any by-laws purporting to restrict the height of antennas and towers. Do not rely on other amateurs' interpretation of what the law is, but take the time to find out for yourself. A telephone call to your municipal planning department may suffice. If such a by-law does exist, I would suggest obtaining a copy and take the time to review it to determine exactly what it says.
Why is that? I thought municipalities could not regulate the height of amateur antennas.
It is generally considered that the regulation of antenna and the supporting structure falls exclusively within the domain of the federal government. In other words, it is not open for a municipality to attempt to regulate the height of a communication antenna as that is something strictly within the ambit of the federal government. In 1989, Prof. David Townsend at the University of New Brunswick authored a study entitled Canadian Municipalities and the Regulation of Radio Antenna and the Supporting Structures for the then Department of Communications. This document is commonly referred to as the "Townsend Report". Prof. Townsend concluded, and I think quite correctly, that in law, the federal government has the sole right to regulate the height of antennas and their supporting structure. However, what many people forget in referring to the Townsend Report is that it concluded that while municipalities did not have a right to regulate in this area, their concerns should bear some consideration.
Further, the Townsend Report has never been subject to judicial scrutiny, nor is there Canadian case law which has dealt with the right of a municipality to regulate in this area.
Does that not mean I can simply ignore any municipal by-law or regulation?
No. Industry Canada has followed the recommendation of the Townsend Report in that while a municipality may not have the right to regulate in this area, they have a right to have their concerns addressed. Industry Canada has set out a process by which an amateur must follow in erecting a support antenna structure. This process is outlined in the infamous Industry Canada Document CPC 2-0-03 circular available at Spectrum Management and Telecommunications. Amateur stations are considered "Type 2 stations" and are not licensed on a site specific basis and as such, Industry Canada has no specific procedure that one must follow. However, they do insist that amateurs consult with the land use authority and their neighbours prior to the installation of the antenna and its supporting structure. This "consultation" is by design somewhat vague as Industry Canada realized the exact nature that consultation will vary on a case by case basis. What RAC is trying to do in consultation with Industry Canada is to put some limits and guidelines on the consultation process.
Okay, my town has a by-law purporting to restrict the height of antennas to 10 metres. What should I do?
The first thing you should do is determine whether or not the by-law applies to amateur installations. If amateur radio is not specifically mentioned, it could be that the by-law is designed to limit the height of satellite dishes or other antenna. The second thing you should do is to notify the municipality of your proposed installation, that you are aware of the by-law and that you would question whether it is enforceable in this instance.
I think the best way to do this is by the use of a "standard form" document which I have developed in consultation with municipalities and a number of amateurs. This document is entitled "Notification to a Local Authority" and is designed to answer Industry Canada's concern that you consult with the local authority. This document is available as part of a package from RAC and is available on the RAC web site.
Is that all I have to do, or should I apply for a development permit?
It would be my suggestion that as a first step you simply send the Notification to the local authority. There is an argument that if you do apply for a development permit you are submitting the jurisdiction of the local authority and may find that you are bound by a restrictive by-law. In some instances, Industry Canada has requested the amateur apply for a development permit to "further the consultation process". If you chose to apply for a development permit, you should make it very clear that you are doing so only to further the consultation process imposed by Industry Canada and that you are not submitting to the jurisdiction of the municipality.
I would note that in some municipalities a by-law has been enacted after input has been obtained from the local authority, Industry Canada and local amateurs. These types of by- law are not strictly "legal" but they do go a long way in dealing with the local authority and at the same time meeting Industry Canada guidelines. By-laws of this type typically allow for a reasonable antenna amateur installation and have a procedure for applying for some form of "permit". The City of Edmonton and the County of Strathcona in Alberta are both examples where these types of by-law have been negotiated and have proved to be highly effectively.
So what happens if the municipality insists that I apply for a development permit or indicate that they will not allow the installation after I have notified them of same?
If a local authority is being particularly stubborn on this type of installation, then I have no difficulty through my offices in writing to the authority and providing them with a legal opinion as to the enforceability of the by-law. In most cases, it is simply a matter of educating the municipality which will alleviate any problems. I would note that RAC is attempting to educate local authorities through the Canadian Federation of Municipalities.
What if I am experiencing some trouble from a local authority. Will Industry Canada get involved?
In my experience, Industry Canada is reluctant to get involved as they expect the amateurs to resolve difficulties themselves. However, where Industry Canada does get involved, they want to ensure that the amateur has followed the consultation process to the letter. Industry Canada has made it clear to municipalities that they have the sole right to regulate in this area and that municipal input into the process does not confer any right of veto. In other words, Industry Canada will have the last word on the installation.
My town does not have any restrictive regulations. Do I need to advise them of the installation?
Yes. Industry Canada requires you to consult with the local authority, regardless of the existence of a by-law.
All right, I have "consulted" with the municipality. What should I do next?
The next thing you have to do is to notify your neighbours of the proposed installation. Again, make sure you are in the right mind set. You are not asking the neighbours for their permission or consent to the installation, you are simply advising them of what you are doing and answering any questions that they may have.
Again, I have drafted a form of letter which can be sent to your neighbours, advising them of the installation and attempting to answer some of the common questions that they may have. (click here to see samples)
How may neighbours should I send this to?
The best thing to do is to obtain a plot plan of your neighbourhood. There is no specific guidelines as to how many neighbours you should have to notify, but I would try to send a letter to those neighbours who have an unrestricted or partially restricted view of the installation.
As part of notification to the municipality, you should attach a draft form of the letter and indicate on the copy of the plot plan which neighbours you have advised of the installation. The draft letter is simply a precedent and you may feel free to make changes which are pertinent to your installation. I would also suggest incorporating a sketch of what you are installing with the letter. I find most non-amateurs have no idea of what you are talking about when you indicate that you are putting up a beam and a supporting structure. If there are other amateurs in your neighbourhood with similar installations, you may want to reference their address so that the neighbours have an idea of what you are talking about.
Is there anything else I should do?
Yes, no doubt some of the neighbours will have questions and you should attempt to answer them as best you can. What I would do is keep a record of the questions which are asked and your response. This can then be used as evidence of "consultation".
How long should I wait until I start the installation?
You will probably receive a flurry of responses as soon as you send out the letters. I would not wait too long as if there is significant negative response to installation, you do not want to give it a chance to gather steam. I would think one week's advance notice is plenty of time providing you can adequately response to any of the neighbour's concerns.
Help! My neighbours just presented me with a petition demanding that I do not put up the installation. What should I do?
If there is significant negative response to your proposal, it may be worthwhile having an information session at a local community hall to try and address any concerns that come up. If you do have a "information session", make sure that you have someone moderate it and try to have knowledgeable amateurs present who can respond to some concerns. For example, in one case in Calgary, we had amateurs who were engineers and doctors present to deal with some of the specific concerns that their neighbours had. I would not let the threat of a petition deter you from putting up the installation. Simply follow the consultation process by trying to respond to the concerns. The neighbours may not be happy with the responses, but at least you will have "consulted" with them.
I just received a letter from a lawyer indicating that he was acting for a group of my neighbours and they were considering obtaining an Injunction if I proceeded with the installation. What the heck is that?
An Injunction is a form of Court Order which would prevent you on an interim basis from proceeding with the installation. To my knowledge, there has only been one instance in Canada where an interim Injunction was obtained preventing an amateur from proceeding with the installation and that Injunction was later set aside and not made permanent.
In general, in order to obtain an injunction in most jurisdictions in Canada, it is necessary for the complainants to show that they will be irreparably harmed by your actions. The usual basis for filing for an injunction is that the erection of the tower will lower property values. In my experience, there is not one study suggesting that amateur antennas and supporting structures lower property values. It is usually the case that property values for those houses adjacent to an amateur will increase at the same rate as the rest of the neighbourhood. Neighbours who object to the installation will often try and present "evidence" from real estate agents purporting to suggest that the installation will have a significant harm on property values. In most cases, the real estate agents do not have the facts to support this type of a conclusion. In one case in Ontario, evidence from a certified property appraiser suggesting that there would be no decrease in property values was accepted by the Court over that of the opinions of an number of real estate agents. In the event that matters escalate to where you are receiving letters from lawyers, I would suggest that as a first step you contact me to determine if I can be of any assistance. In one case, I have successfully been able to show a lawyer in another jurisdiction that the amateur in question had a very good case.
Okay, how do I deal with some of the specific concerns from neighbours. For example, one neighbour is concerned about the safety of the structure.
The common complaint for one's neighbours is that the installation will have a significant negative visual impact on the neighbourhood. There is not much one can do respond to this type of complaint other than to indicate that the installation will be erected in such a manner to lessen the visual impact. You may want to make reference to larger towers, beams etcetera which you could have erected, but chose your installation specifically due to the aesthetic concerns. With respect to safety, you have an obligation to ensure that the tower is well grounded and that your yard is fenced and in addition, in areas where there is small children that you install anticlimb devices. You will note that in the Notification to the Municipality, you will be indicating that you have the proper insurance in place for this type of structure. It is a good idea to contact your insurer to advise them of the installation and determine if you have sufficient coverage.
I see in the Notification you make reference to Safety Code Six. What is that?
Safety Code Six is a code published by Health and Welfare to set out safety requirements for the installation of and use of radio frequency devises that operate in the frequency range 10 kilohertz to 300 Gigahertz. Industry Canada expects amateurs not to exceed that maximum exposure levels set out in Safety Code Six. The difficulty is that to try and measure maximum exposure levels for a "typical amateur" installation is quite difficult without the appropriate engineering software. If you operate at a nominal 100 watts and the adjacent properties are set back as they would be in a typical urban area, most amateur installations have no danger of exceeding Safety Code Six. However, in one case in Calgary, Industry Canada did conduct the appropriate engineering to determine whether or not an amateur exceeded the maximum exposure limits. The findings were somewhat surprising as they indicated that at the level of one Kilowatt the amateur in question came very close to exceeding the Safety Code Six limit. Of course Safety Code Six is really addressed at commercial RF applications and it is questionable whether it is really applicable to a typical amateur installation.
I have one neighbour who is very concerned about the health affects of RF radiation. What should I do?
This is a very thorny issue. The experts are divided as to whether there is any significant health effects from long term exposure to RF radiation. As part of the "package" you present to your neighbours (and perhaps to the municipality as well) you may want to consider submitting a copy of a paper authored by Dr. Rick Zabrodski VE6GK which provides an articulate presentation on this issue.
A copy of Industry Canada Document CPC 2-0-03 can be found on their Spectrum Management and Telecommunications web site
Is there anything else I can do with respect to this issue?
Most amateurs will not be able to determine whether or not they will meet Safety Code Six without the appropriate engineering background. RAC has copies of Safety Code Six available through the book store for those amateurs who are interested. However I would suggest that an easier way for amateurs to advise of RF radiation from their station will have no harmful health effects is to show they do not exceed the limits set out in the American National Standards Institute C95.1-1991. This ANSI limit is often referred to in technical papers dealing with the health effects of RF exposures. There is a very simple program from Ed Parsons, K1TR which will allow an amateur to calculate the power density in watts per square metre for their installation. The program will not only show what the power density is for a specific installation, but will express what the power density limit in a percentage of the ANSI limit. You will note that in the Notification there is an option to include an appendix dealing with bio-effects. I would leave it in an amateurs discretion to determine whether or not to broach this subject. To date, we have not been able to locate a source for the program on the Web. As an alternative, you may wish to download the Near Field Analysis Software (NF.ZIP) from KA9FOX's web site
If it is of particular concern to one's neighbours, I would suggest a calculation from K1TR's program will suffice in "consulting" with your neighbours. K1TR's program "PWR-DENS" is available from K1TR.
Are there any other tips?
Yes, you will want to ensure that you have sufficient evidence if an issue arises after the tower and beam have been installed. For that reason, I suggest amateurs keep details of the construction of the installation and take photographs of the foundation the tower. If a safety issues arises at a later date, you will have a good record of your installation. Above all, try and keep the installation as neat as possible. That means no ratty pieces of coax flapping in the wind. Anything you can do to lessen the visual impact will be of assistance if an issue arises at a later date.
I have decided not to put up a tower and a beam, but want to erect a dipole antenna or perhaps a vertical. Do I still have to consult with my neighbours?
My usual advice is that a smaller type of installation comprising of wire antennas or simple vertical does not mean that you have to go through the consultative process. However, it cannot hurt to consult with you neighbours on an informal basis even if you are erecting a simple antenna.
What if I have any other questions?
I will be happy to answer them by e-mail or by telephone. I will conclude by pointing out that we are in a much better position in Canada than our fellow amateurs in the United States. American amateurs face really restrictive bylaws, will often have to retain counsel and apply for zoning variances and development permits. We have had far better success in dealing with antenna problems on an informal basis and for the most part have avoided costly litigation.
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