I think the contentious issues with CC&Rs are several fold:
1) In a lot of places (certainly true for Southern California), local
planning permission for a developer is contingent on the developer having a
set of CC&Rs that is "acceptable". Given that there are literally pallet
loads of documentation involved in a planning case for a subdivision, nobody
looks too closely at the CC&Rs, particularly since this occurs years before
the houses actually get built. The net result is that there aren't any
"non-CC&R" houses available, so the issue of "voluntary acceptance of the
contract" is a bit hazy when there are no constructive alternatives.
2) Original CC&Rs are definitely written to be developer friendly (why not?
The developer is paying for them and wants to sell the houses). At least in
my case, the CC&Rs include provisions effectively prohibiting substantial
revision until the last house is sold (which can be a very long time, in a
multiphased development, particularly if the developer has another tract in
the area coming on line, and wants to point people to the previous tract as
an example.. just hold back a few of the houses) Revising the CC&Rs is a
extremely challenging process, in practice, because few homeowners want to
wade through the 100 or so pages in detail. Remember, most people are just
fine with the CC&Rs as they sit.. sure, there are little annoyances, but
often, clauses that are truly annoying to the majority aren't really
enforced (parking rules, e.g.). There is also the perceived pain of
creating something new (which might have unforeseen consequences) versus the
"devil you know".
3) Aesthetic taste. Face it, CC&Rs aren't there for safety kinds of reasons
(that's what laws and ordinances are for).. they exist to "maintain property
values" which is, in large part, determined by appearance. Think of all
those rules about keeping your lawn mowed and your trash cans out of sight.
You and I might think that a 100 foot tower with a nifty multiband antenna
stack on the top is a engineering marvel and a work of beauty, but I can
assure you that a significant number of your neighbors do not agree. To
them, it is the same as parking that defunct car in the front yard as a
combination planter/porch swing. No amount of speculative "emergency
communications" or "freedom of the airwaves" is going to convince them on
what is essentially a aesthetic argument.
On the other hand, given that it is an aesthetic argument, a blanket ban on
antennas and transmitters of any kind seems unreasonable, and is worth
challenging in some fashion, if only because they don't ban the transmitters
in garage door openers, cordless phones, and cell phone (handsets), nor
mobile transmitting. There are attempts to rationalize these restrictions
on the basis of interference or EM safety, but I think that several factors
help here: 1) Much tighter regulation of EMI/EMC for consumer equipment
these days than, say, 20 years ago. 2) Safety and interference are
legitimately the province of regulatory agencies and probably preempt local
control (12 foot limits, e.g.)
4) lack of economic power. There aren't many hams... compared to, for
instance, the number of people who want DBS Ku-band receivers. TV
broadcasting (in its many forms) is a multi-multi billion dollar business,
and money talks in the regulatory regime. Look at the recent revision of
the OTARD rules to allow transmitting antennas for wireless internet/etc.
services.. they specifically exclude amateur radio.
----- Original Message -----
From: "Dave Pomeroy" <dave@dpomeroy.com>
To: <towertalk@contesting.com>
Sent: Friday, April 19, 2002 9:21 PM
Subject: RE: [Towertalk] ABC Home Owners Assoc Expose
> I read in one Supreme Court case where the court said "there can be no
> rights issues when contracts are involved". Thats probably not an exact
> quote but close. So it seems to me that the CC&R's are contracts and you
> sign them voluntaryily then your hosed and its your own fault. Have a;
> great day.
>
> At 11:25 AM 4/20/02 -0400, Joe Subich, K4IK wrote:
>
>
> > > -----Original Message-----
> > > From: Paul Christensen
> > > Sent: Saturday, April 20, 2002 10:34 AM
> > > To: Brian Hemmis; towertalk@contesting.com
> > > Subject: Re: [Towertalk] ABC Home Owners Assoc Expose
> > >
> > > Reform is a legislative issue, not a judicial issue regardless of
> > > the number of attorneys who sit in Congressional seats. This is
> > > the reason why the FCC correctly deferred the ARRL's recent
> > > preemption petition to Congress...precisely where it belongs.
> >
> >
> >Paul,
> >
> >You're only partially correct (if I may argue with a lawyer on a legal
> >issue). If the laws concerning Homeowner Associations (or private
> >contracts) permit actions which are unconstitutional ... limit
> >free speech (First Amendment) , due process (Fifth Amendment) rights
> >or are subject to federal preemption, e.g. interstate commerce (Article
> >1, Section 8), then the reform becomes a judicial issue and the law(s)
> >in question must be struck down.
> >
> >While I support reasonable homeowner association rules, I believe anti-
> >antenna CC&Rs should be struck down as violative of (1) free speech
> >rights, (2) due process rights, and (3) improperly intruding into an
> >area of federal primacy (interstate/international commerce).
> >
> >There is a reason to call the judiciary (and thus the lawyers) to task
> >for allowing the homeowner association mess to continue unchecked.
> >
> >73,
> >
> > ... Joe, K4IK
> >
> >
> >_______________________________________________
> >Towertalk mailing list
> >Towertalk@contesting.com
> >http://lists.contesting.com/mailman/listinfo/towertalk
>
> Dave Pomeroy K8DNP South Western Michigan
>
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