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Legal Argument against FAA

Old 01-18-2017, 07:47 AM
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SunDevilPilot
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Default Legal Argument against FAA

This is just a re-post of a thread I saw on another website. It speaks directly to all the FAA action being taken against our hobby and attempts to force the courts to look at the legality of all the new regulations (Registration / agreeing to rules) we are being tasked with following.

The author of the post is the same gentleman taking the issue before the court, John Taylor. I read all the briefs and found them quite logical and full of common sense. The briefs argue the FAA was lacking in those concepts when they created the registration rules for modelers as well as the No-Fly Zones.

Begin quote of John Taylor:

The case has now been scheduled for oral argument on March 14, 2017.
bit.ly/2j83NKX

I haven't been posting anything about the case in a while, because there simply wasn't anything to say. I filed my reply brief in August, and have been awaiting the scheduling of oral argument since then.

Though this is a long process, the timing is consistent with other cases in that court.

A decision might be expected between June and August, though there are a lot of variables.

I remain quite optimistic on the law, but there are still a number of events that could intervene to derail this before the court rules.

Here are links to:

My brief: bit.ly/28ADz7H

The FAA Brief: bit.ly/2aDPjgT

My reply brief: bit.ly/2bme0ys

Last edited by SunDevilPilot; 01-18-2017 at 07:50 AM.
Old 01-19-2017, 07:55 PM
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RickBoyer
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SunDevil,

AMA Code and FAA Regulation may not matter at this point when you now have established court precedence as follows:

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeffrey L. Grim and Carol A. Grim, :
Appellants :
:
v. : No. 2482 C.D. 2015
: ARGUED: September 15, 2016
Zoning Hearing Board of Perry :
Township and Township of Perry, :
Berks County and Earl Christman, :
James P. Adam, Jan M. Adam and :
Dean A. Adam :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE HEARTHWAY FILED: December 9, 2016
Jeffrey and Carol Grim (Landowners) appeal from the order of the Court of Common Pleas of Berks County, dated November 18, 2015, affirming a decision by the Zoning Hearing Board (ZHB) of Perry Township, denying Landowners’ requests for a variance by estoppel or a special use exception. We affirm.
Landowners own a 48.5 acre parcel in Perry Township (Township), Berks County. The property is zoned Rural Agricultural (R-A), where the operation of a recreational club or facility is not permitted as of right. Nevertheless, Landowners leased the property to the Fairview R/C Flyers Club 2
(Club) in 2007. The Club used the property to fly model aircraft daily from 9 a.m. until dusk, weather permitting. After receiving complaints from neighbors about Club activities, the Township issued a Notice of Violation (NOV) on August 22, 2014. The NOV stated that the Club’s activities were not permitted by right in the R-A Zoning District and that the use was never authorized.
Landowners filed an appeal with the ZHB on September 18, 2014, arguing that they were entitled to a variance by estoppel, or in the alternative, a special use exception. The ZHB held public hearings on November 17, 2014, and December 15 and 29, 2014, where evidence of the following was presented.
Model airplane clubs began flying remote control planes on the property in the late 1960s. In 1997, the ZHB granted Landowners a special exception to operate a nine-hole golf course on the property. Model airplane club activity on the property ceased from 1998 until 2007, when the golf course closed.
The Club commenced operation on the property in 2007 under an annual lease with Landowners for $10,000 per year. In addition to daily flight activity, the Club also hosted fundraising events on three or four weekends a year. Many of the model planes in use had wingspans up to ten feet. Model jets weighed up to 55 pounds and traveled at speeds in excess of 200 miles per hour. The aircraft flew in an oval path that extended beyond the boundaries of Landowners’ property. The Club president testified that he was aware of approximately 12 crashes of model aircraft on adjacent properties over an eight year period. One neighbor testified that approximately ten model aircraft had crashed on his land. 3
Another neighbor stated that he had experienced approximately 12 crashes per year on his property.
In April 2014, Landowners obtained a building permit from the Township for construction of a 2,400 square-foot pole building, which has been used for storing model aircraft and other equipment (e.g., golf carts, lawn mowers). The cost of the building exceeded $25,000. The application for the building permit did not refer to model aircraft operation or storage.
The ZHB issued a decision on April 13, 2015, denying Landowners’ requests. On April 23, 2015, Landowners filed an appeal with the Berks County Court of Common Pleas, which relied on the record from the ZHB hearings and did not take additional evidence. On November 17, 2015, the trial court affirmed the decision of the ZHB. On December 4, 2015, Landowners filed a timely appeal to this Court.
Our standard of review is well-settled. Where the trial court does not take additional evidence, the zoning board’s decision must be upheld unless the board committed an error of law or "a manifest abuse of discretion."
Valley View Civic Association v. Zoning Board of Adjustment, 462 A.2d 637, 639 (Pa. 1983). A zoning board abuses its discretion "only if its findings are not supported by substantial evidence." Id. at 640.
Landowners argue that they are entitled to a variance by estoppel that would permit Club members to continue operating model aircraft from the 4
property. A "variance by estoppel is an unusual remedy under the law and is granted only in the most extraordinary of circumstances."
Skarvelis v. Zoning Hearing Board of Dormont, 679 A.2d 278, 281 (Pa. Cmwlth. 1996) (citations omitted). The remedy is limited to circumstances "when a property owner. . . has maintained a use of property contrary to the zoning laws for a long period of time." Colelli v. Zoning Board of Adjustment of City of Pittsburgh, 571 A.2d 533, 534 (Pa. Cmwlth. 1990). An applicant for a variance by estoppel must establish:
(1) the municipality’s failure to enforce the ordinance for a long period of time; (2) that the municipality knew, or should have known, of the illegal use and "actively acquiesced" in the illegal use; (3) reliance by the owner on the appearance of regularity that the municipality’s inaction has created; (4) hardship created by the cessation of the illegal use; and (5) that the variance will not be a threat to the health, safety or morals of the community.
Id.
at 534-35. For Landowners to "prevail under a theory of variance by estoppel, they must establish the essential factors by clear, precise and unequivocal evidence." Springfield Township v. Kim, 797 A.2d 717, 721 (Pa. Cmwlth. 2002) (citation omitted).
The ZHB and trial court both concluded that Landowners failed to establish two of the essential factors by clear, precise and unequivocal evidence: that cessation of the illegal use would create a hardship and that the variance would not be a threat to the health, safety, or morals of the community. Focusing on just 5
these two factors, we agree that the ZHB’s findings are supported by substantial evidence and there has been no manifest abuse of discretion.
1
1 Having found Landowners failed to establish these two factors, this Court need not analyze the additional factors addressed by the ZHB and trial court.
On the issue of hardship, Landowners contend that their $25,000 expenditure on the pole building and the loss of the $10,000 annual lease with the Club would amount to a hardship and cite
Vaughn v. Zoning Hearing Board of Township of Shaler, 947 A.2d 218 (Pa. Cmwlth. 2008), as support for their position. In Vaughn, this Court ruled that a property owner was entitled to a variance by estoppel to preserve a non-conforming retaining wall on his property. The property owner in Vaughn established that the denial of a variance would result in hardship with evidence that enforcement of the relevant ordinance would require an expenditure of $20,000 to demolish and remove the offending wall. Id. at 224.
This case is distinct from
Vaughn in that the denial of a variance will not require Landowners to pay to demolish the pole building or any other structure. Although Landowners argue that the sole purpose of the pole building is to store model aircraft, the record shows that Landowners also store golf carts, lawn mowers and other equipment therein. (R.R. 108-09a, Notes of Testimony, 11/17/2014, at 89-90). Landowners’ prior investment in the pole building, a structure demonstrably adaptable to other uses in the absence of a variance, does not support a finding of hardship. Nor does the loss of income from the lease to the Club. 6
A mere showing of some economic loss is insufficient to demonstrate unnecessary hardship in the context of a variance by estoppel. 679 A.2d at 283-84. "[U]nnecessary hardship is a condition which renders a property almost valueless without the grant of a variance."
Schaefer v. Zoning Board of Adjustment of the City of Pittsburgh, 435 A.2d 289, 292 (Pa. Cmwlth. 1981). The record shows that Landowners previously operated a golf course on the property and the record is void of any other evidence that shows the property is not susceptible to a valuable permitted use in the absence of a variance. Consequently, Landowners have failed to demonstrate sufficient hardship to support the grant of a variance by estoppel.
To qualify for a variance by estoppel, Landowners also must establish that the variance would not pose a threat to the health and safety of the community.
2 571 A.2d at 535. Both the ZHB and the trial court concluded that Landowners also failed to meet that burden, however. The ZHB found that the Club’s activities would "be detrimental to the public health, safety and general welfare" of neighboring properties. Decision of the ZHB, April 13, 2015. (R.R. at 506a.) The trial court stated:
2 Likewise, if Landowners are to prevail in their alternative argument that they are entitled to a special use exception that would permit Club activities to continue, they must show that the proposed use would not adversely affect the health and safety of residents or workers on adjacent properties. Township of Perry Zoning Ordinance 502.3(e). (R.R. at 557a.)
The record clearly demonstrates that the speed, size and weight of the model airplanes and jets have increased over the past five decades to characteristics where safety needs to be the primary concern. When the Club restarted its recreational activities in 2007, the scope of its use rapidly grew to include larger, heavier and louder model planes and jets. 7
The record is replete with testimony. . . evidencing the Club’s inability to ensure the safety of [Landowners’] neighbors and the public at large. There have been numerous complaints, crashes, and trespasses by Club members retrieving fallen parts from neighboring land. The Club’s actions are increasingly putting residents, workers, livestock, buildings, equipment, and crops in threatening situations.
Trial Court Opinion, January 22, 2016, at 12-13. (Landowners’ Br., Appendix B.)
Landowners characterize the evidence of danger to health and safety in this case as merely speculative. They argue that this case is controlled by
JoJo Oil Company v. Dingman Township Zoning Hearing Board, 77 A.3d 679 (Pa. Cmwlth. 2013). In JoJo, a home heating oil company sought a special use exception to operate a bulk fuel transfer station. Neighbors objected, testifying about their proximity to the proposed fuel station and fears of an explosion. Id. at 684. The local zoning hearing board denied the request for a special use exception in part because of the potential risk of explosion posed to adjoining properties. Id. at 685. The oil company appealed that decision to the trial court, which reversed the local zoning hearing board. "[T]he trial court found that there was a lack of testimony as to the level of risk of an explosion," and reasoned that the objecting neighbors "merely speculated as to the risk of explosion." Id. On appeal, this Court affirmed the trial court. We ruled that "[a] proposed use’s detrimental effect on public safety must be established by evidence," and that "[m]ere speculation as to a possible harm is insufficient." Id. at 688-89 (emphasis added) (citation omitted). 8
However, unlike the evidence in
JoJo, the evidence before the ZHB in this case included concrete accounts of model aircraft repeatedly crashing on adjacent property. There is substantial evidence to support the finding that the operation of these model planes poses a serious threat to persons on adjoining land. Therefore, Landowners have failed to establish that they are entitled to a variance by estoppel.
Similarly, because the record supports the conclusion that the Club’s activities would have an adverse effect on the health and safety of residents and workers on adjacent properties, the ZHB and trial court properly concluded that Landowners do not qualify for a special use exception.
Accordingly, we affirm the decision of the trial court.
__________________________________
JULIA K. HEARTHWAY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeffrey L. Grim and Carol A. Grim, :
Appellants :
:
v. : No. 2482 C.D. 2015
:
Zoning Hearing Board of Perry :
Township and Township of Perry, :
Berks County and Earl Christman, :
James P. Adam, Jan M. Adam and :
Dean A. Adam :
O R D E R
AND NOW, this 9
th day of December, 2016, the order of the Berks County Court of Common Pleas is affirmed.
__________________________________
JULIA K. HEARTHWAY, Judge
Old 01-20-2017, 03:23 PM
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Originally Posted by RickBoyer View Post
There is substantial evidence to support the finding that the operation of these model planes poses a serious threat to persons on adjoining land." .... Judge Julia Hearthway

I saw that as well. AMA said they were "following it" and hinted that were issues not commonly known. Oh, ok, so now the AMA is in the land of "double secret probation" to quote a famous movie.

Regardless, it appears that not being an awesome neighbor has consequences.

Last edited by franklin_m; 01-20-2017 at 03:25 PM.
Old 01-20-2017, 03:33 PM
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Angry

Those two cases are like apples and oranges. Not at all similar!

The AMA needs to get behind this. Next to economy registration is probably the largest killer of our hobby!

Last edited by Sport_Pilot; 01-20-2017 at 03:39 PM.
Old 01-21-2017, 06:18 AM
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RickBoyer
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Sport Pilot,

I'm on your side. Both cases are dissimilar; however, both cases bear down on the success of the AMA in general. Like your red smiley by the way.........
Old 01-21-2017, 06:50 AM
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Originally Posted by RickBoyer View Post
Sport Pilot,

I'm on your side. Both cases are dissimilar; however, both cases bear down on the success of the AMA in general. Like your red smiley by the way.........
The AMA has little control over local clubs. Not sure anyone contacted them. If they tried, many here would howl.
Old 01-22-2017, 07:58 AM
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Originally Posted by Sport_Pilot View Post
The AMA has little control over local clubs. Not sure anyone contacted them. If they tried, many here would howl.
EVP told me they were "following it." Now, I would ask that if AMA isn't willing to step to help in situations like the PA club had, when exactly are they going to step in? Only when it doesn't cost them anything?

Worked for a Maitre'D once who had a great saying. "If you want to act like a big shot, then you better be prepared to pay like a big shot." Well, for months we've been hearing AMA tell us what a powerful force they are. Well, seems they should have thrown their weight behind these - unless of course they're not as powerful as they've been telling us they are.
Old 01-22-2017, 09:57 AM
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I suspect they saw that the club was a huge liability. Bad clubs do not deserve help.
Old 01-22-2017, 08:42 PM
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Why hot? That's like saying anyone that has problems, regardless of what they are, doesn't need some kind of assistance.
BTW, what makes a club bad? Is it one of these:
1) Members that do what they want, regardless of rules
2) Officers that do what they want and don't bother to enforce rules
3) A club that are nothing more than a group of people that don't want to fly alone that doesn't bother to set up rules or have officers

If any or all of these are what you're talking about, it sounds to me like it's an organization THAT DOES NEED HELP!!!!!!!!!!!!!!
Old 01-22-2017, 10:07 PM
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Such clubs probably would not ask nor accept help. Cannot give help when not wanted. Enough of that case here. It is off topic. This is about the registration case.
Old 01-23-2017, 09:32 PM
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Originally Posted by Sport_Pilot View Post
Such clubs probably would not ask nor accept help. Cannot give help when not wanted. Enough of that case here. It is off topic. This is about the registration case.
It's funny YOU, of all people, should say that since YOU are the one that started this tangent when YOU SAID "I suspect they saw that the club was a huge liability. Bad clubs do not deserve help." two posts back. Just love it how you just turned this around from doesn't deserve to wouldn't ask or accept. So which one is it, do they not deserve as they are a liability or would they not ask or accept?
The way I see it:
1) if the club is a liability, the district officers should step in and do something to change the situation
2) if the club needs help, the district officers should step in and offer to do something to help and let the club accept or reject.

Either way, you waffling on this is about as productive as a grain field planted in the middle of a desert with no way to water it.
Old 01-23-2017, 09:44 PM
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Originally Posted by Hydro Junkie View Post
It's funny YOU, of all people, should say that since YOU are the one that started this tangent when YOU SAID "I suspect they saw that the club was a huge liability. Bad clubs do not deserve help." two posts back. Just love it how you just turned this around from doesn't deserve to wouldn't ask or accept. So which one is it, do they not deserve as they are a liability or would they not ask or accept?
The way I see it:
1) if the club is a liability, the district officers should step in and do something to change the situation
2) if the club needs help, the district officers should step in and offer to do something to help and let the club accept or reject.

Either way, you waffling on this is about as productive as a grain field planted in the middle of a desert with no way to water it.
Clubs are individual private organizations and cannot be ordered by AMA. This club may not have deserved help and may also have refused help. The opposite may also be true. If a liability then AMA should drop insurance.

This is also off topic. So take your anger elsewhere.

Last edited by Sport_Pilot; 01-23-2017 at 09:47 PM.
Old 01-23-2017, 11:16 PM
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And, once again, Sport Pilot starts something and twists everything to try and make himself look good. Obviously, you can't take a stand on anything and, since I've called you out and you retreated, guess it's time for me to get out of another thread before I say something everyone will regret.
BTW, for the record, I was never angry. I just bolded who it was that started and then twisted this tangent. If you think that was anger, you need to look it up in the dictionary

Last edited by Hydro Junkie; 01-23-2017 at 11:18 PM.
Old 01-24-2017, 04:34 AM
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Originally Posted by Hydro Junkie View Post
And, once again, Sport Pilot starts something and twists everything to try and make himself look good. Obviously, you can't take a stand on anything and, since I've called you out and you retreated, guess it's time for me to get out of another thread before I say something everyone will regret.
BTW, for the record, I was never angry. I just bolded who it was that started and then twisted this tangent. If you think that was anger, you need to look it up in the dictionary
Then stop posting on the wrong post and stop with the double talk. Both of my posts could be true as it can work both ways, and you and I know little about what the AMA did or did not do. You apparently think the AMA can run the club. Well it cannot!
Old 01-24-2017, 09:56 AM
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Gentlemen,
if you can't be civil and have a productive conversation about a topic, then don't participate at all. Everybody has an opinion and deserves respect even when you disagree. It is possible to disagree without personally attacking people and without being rude or judgmental. A good way to do that is to start with, "I disagree because..."

If the personal attacks continue, the thread will be closed and moderators will consider giving infractions or vacations to users who have violated the RCU community standards.
Old 01-24-2017, 02:36 PM
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......... the evidence before the ZHB in this case included concrete accounts of model aircraft repeatedly crashing on adjacent property. There is substantial evidence to support the finding that the operation of these model planes poses a serious threat to persons on adjoining land.

Reading the above quoted statement with all fairness to the subject at hand , Shouldn't there be some mechanism within the AMA that if a club "goes rogue" like this one apparently had , that the AMA gives them some kind of corrective action reprimand , if for no other reason than not wanting to insure a club with such obvious safety deficiencies ? Surely if things got to that kind of court involvement I'll bet the homeowners (likely compelled by their lawyers) complained to the AMA , if so were the complaints ever logged or addressed between the AMA and the officers of the club ? I guess my real question here is just how could it get to "repeatedly crashing on adjacent property" and court involvement without any outward signs of action toward the club officers for allowing the barnstorming fest to continue ?


Old 01-24-2017, 02:38 PM
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wow that's weird , cause I did a cut and paste of that little piece of the quote it changed my typed words to the same font as the one I quoted .
Old 01-24-2017, 08:32 PM
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I can agree with that, but AMA might not have known. But this off topic, please post on correct thread. The OP posted about a case on registration.
Old 01-25-2017, 09:59 AM
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OK guys, As Jester_S1 has said, let's all take a deep breath and slow down a bit. There is no reason at all that this topic needs to have everybody at each other's throats. So let's discuss this like civil human beings instead of like a bunch of wild animals fighting over a scrap of meat, and that way I won't have to step in and take actions in the thread!!!!

Ken
Old 01-25-2017, 11:04 AM
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Originally Posted by RCKen View Post
OK guys, As Jester_S1 has said, let's all take a deep breath and slow down a bit. There is no reason at all that this topic needs to have everybody at each other's throats. So let's discuss this like civil human beings instead of like a bunch of wild animals fighting over a scrap of meat, and that way I won't have to step in and take actions in the thread!!!!

Ken
Hi Ken ,

I hope you don't think I was yelling in my post # 16 because of the big letters , I didn't do that on purpose it happened when I cut & pasted the small piece of the quote in post #2 .

Now as to sport pilot's on topic thing , since I was replying to what was presented in post #2 , which was posted as a follow along discussion of post #1 , I personally don't think it's too far off topic to discuss the content of post #2 . Less fighting about all kinds of things , like less of the strict calls for thread purity may go a long ways toward making this a friendlier place to post .

So , does anybody know if the case presented in post #2 was ever looked into by the AMA before it got to the point of court involvement ? Does the AMA even have an internal means of identifying and possibly correcting "problem clubs" that are AMA chartered before it gets to the stage of court involvement ? If each of these questions needs a new thread of their own then so be it , I'll be happy to create a new thread for every twist & turn each thread takes , but it was my understanding that as long as the conversation follows the general intent or theme of the opening post it's fair game . Am I wrong about that ?
Old 01-25-2017, 01:12 PM
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The two cases are not even in the same ball park. The OP case is about a case on registration against the FAA which would affect us all. The latter one is about a case that is done and only affects one club. It only offers an excuse to bash the AMA for what it may not have done. Problem it has little effect on us and nobody is talking about the case that is really hurting our hobby. Nobody buying anything especially the mid sized models. Everything seems to be either giant scale or small foamies. Even most of the mid sized I see are ready to fly foamies. More rogue sites where the unregistered fly as well. If you are not going to register, why bother with the AMA. Not my opinion BTW, but the attitude of the rouge flyers.

BTW I have no problem with your post other than it was not about FAA registration.
Old 01-25-2017, 01:24 PM
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Originally Posted by Sport_Pilot View Post
I can agree with that, but AMA might not have known.
EVP told me that they (AMA) were aware of the PA court case.
Old 01-25-2017, 02:39 PM
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Originally Posted by franklin_m View Post
EVP told me that they (AMA) were aware of the PA court case.

And so it goes, Franklin. On the plus side and much more priority-wise for me, SoCal Wx that has been sucky for weeks is looking good today and predicted to be similar for the next week or so. I just might get some flying in after the field drys out.
Old 01-25-2017, 04:00 PM
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Originally Posted by franklin_m View Post
EVP told me that they (AMA) were aware of the PA court case.

That would be too late. But are they throwing in on the FAA case?
Old 01-25-2017, 05:42 PM
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Originally Posted by Sport_Pilot View Post
The two cases are not even in the same ball park. The OP case is about a case on registration against the FAA which would affect us all. The latter one is about a case that is done and only affects one club. It only offers an excuse to bash the AMA for what it may not have done. Problem it has little effect on us and nobody is talking about the case that is really hurting our hobby. Nobody buying anything especially the mid sized models. Everything seems to be either giant scale or small foamies. Even most of the mid sized I see are ready to fly foamies. More rogue sites where the unregistered fly as well. If you are not going to register, why bother with the AMA. Not my opinion BTW, but the attitude of the rouge flyers.

BTW I have no problem with your post other than it was not about FAA registration.
Thank You Sport . I hope you know that when I ask the questions I ask , It's not coming from a "why didn't the AMA do something , they failed us" kind of bashing of the AMA , because I am for the most part OK with what we've got , instead it's the thought of "If we don't have a protocol for monitoring complaints against AMA sanctioned clubs , with what's at stake now with regards to our hobby's future , should we seek to have one established ?" And of course the follow on question of "Is the issue of rogue clubs prevalent enough to warrant an internal protocol for the AMA to somehow warn and or somehow punish errant AMA chartered clubs ?" Here was a club that had multiple crashes onto their neighbor's property , Franklin showed a jet video a few months back that was taken at an AMA sanctioned field that Andy said had "mayhem" in it's nickname and that Andy himself spoke with the officers about the behavior seen on the video , the more and more of these situations there are the more chances for the hobby to receive the bad press it desperately don't need right now (or ever , for that matter) .

Last edited by init4fun; 01-25-2017 at 06:27 PM.

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