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[TowerTalk] Is the FCC sharp? Is ARRL counsel swift?

To: <>
Subject: [TowerTalk] Is the FCC sharp? Is ARRL counsel swift?
From: (Mike)
Date: Mon, 31 Dec 2001 21:33:15 -0800
Hi Stu,

I don't have much experience with this, but I wonder if any
buyers have had success negotiating specific exemptions (antenna,
or otherwise) to CC&Rs prior to closing on a property? Seems
to me that it might be in the sellers interest to provide a vehicle
for this sort of thing. Demand drives property values, and
providing a vehicle for increasing the pool of interested buyers
would in my opinion tend to increase property values which
is in the sellers interest (and the rest of the neighborhoods).
The HOA's would still maintain control, but their would be
some room for common sense and compromise (e.g. reasonable

73 de Mike, W4EF...................

----- Original Message -----
From: "Stu Greene" <>
To: "Mike" <>; <>
Sent: Monday, December 31, 2001 8:53 PM
Subject: Re: [TowerTalk] Is the FCC sharp? Is ARRL counsel swift?

> At 07:58 PM 12/31/01 -0800, Mike W4EF wrote:
> >Seems to me that the question of erecting towers is really a property
> >rights issue. Not really sure though how private property is protected
> >under the U.S. Constitution. With a few noteable exceptions, it is
> >mentioned in the text:
> >
> >"No person shall be deprived of life, liberty, or PROPERTY without
> >'due process of law.' "  -  U.S. Constitution, Fifth Amendment
> You're right.  Property is not mentioned because, aside from due process
> law and equal protection under law, the courts in England and then here
> have created an entire body of law regarding property.
> But the conflict arises this way.  A tower is my personal property and I
> want to erect it on my real property. OK.  But either CC&Rs, which limit
> use of my property, or zoning laws which do the same thing collide with my
> right to use my property as I see fit.
> The FCC, in PRB-1, preempted zoning as an absolute bar to tower erection,
> and what ARRL did in the next case  was to ask the FCC to treat CC&Rs in
> the same manner.
> The Commission took the easy way out by ruling that  ARRL  persuade
> Congress to enact a statute depriving courts of the power to use CC&Rs to
> prohibit towers. The easy way was not the right way, and I suspect that
> Congress just isn't going to pass legislation preempting CC&Rs.
> .  The right and in my opinion legally correct way to decide ARRL's
> petition would have been to say this. " CC&Rs are contracts between owners
> of property in a subdivision, and as such have created  property rights
> with which we cannot interfere."
> It has been suggested by others and I agree that if hams want to install
> towers they need to check CC&Rs as well as zoning before they buy.  Then
> it's decision time for the buyers.

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