[TowerTalk] Neighbors "rights"

[Jim Lux]

At 11:39 AM 8/14/2003 -0400, brewerj at squared.com wrote:


>You're making my point.
>
>If I as a ham, buy a house with the knowledge that towers are not prohibitied,
>and you as a neighbor move in next door, with the knowledge that towers are
>not prohibited (we both signed off on the closing papers where restrictive
>covenents were reviewed, right?), then you have no complaint to make about
>my towers, when I subsequently exercise the use of my property subject to
>the restrictions placed on them when I purchased the house.
>
>Obviously, if zoning changes took place in the interim, a different situation
>is being posed, but that wasn't the situation being discussed.
>
> > Making such a change is itself legal, whether we like it
> > or not.
>
>But they're not generally retroactive....if my tower was erected in accordance
>with all permits and regulations in effect at the time of installation, you're
>going to have a hard time telling me it's now illegal after the fact!

Actually, they can make new rules that affect existing operations, etc. 
However, they also have to compensate you for the loss (so they don't get 
into trouble with the "takings" clause of the 14th amendment). If you don't 
want to follow the new rule (take down your tower, e.g.), they can make you 
do so, under Emininent Domain.

There is also a strong thread of "for the greater good" running through 
much constitutional and case law, which is subtly (and importantly) 
different than "majority rule".  For example, a majority may decide that 
they want open sewers in their city (cheaper, easy to maintain, they like 
the third world appearance, who knows.. they're the majority).  Such a 
change would likely be prohibited on the basis of public health.

The other thing to remember is that the Constitution (which is deliberately 
vague) is there to protect the rights of the minority from abuses by the 
majority.  It's deliberately hard to change the Constitution, so as to 
provide a "low pass filter", so that the majority opinion (which changes 
fairly rapidly and widely) can't drive the Constitution.  This is also the 
rationale behind life terms for Supreme Court Justices. Yes, there are 
annoying anomalies, but, taken in the long view, this too shall pass.  The 
U.S. isn't likely to cease to exist, or even radically change any time in 
our, or our children's lifetimes (compare any number of countries in South 
America, or USSR/Russia, or South East Asia).

If you want an example of the inanity from reactive, instantaneous 
government with no low pass filtering, take a look at the ballot for our 
next election in California!  It is conceivable that someone could be 
elected governor with less than 10% of the votes (no provision for runoffs, 
etc.).  For this excitement and entertainment, each and every person in 
California will pay around $2.

In the context of antennas, and CC&Rs, and deed restrictions, I suspect 
that case and statuatory law is steadily evolving, and not only for 
antennas.  The highly structured CC&Rs and planned development thing is 
relatively new (certainly less than 50 years), and the law hasn't evolved 
to accomodate this sort of quasi governmental thing.  And, as several 
posters have wisely pointed out, the folks on the various low level boards 
(planning, zoning, homeowner's association) are largely volunteers who are 
trying to do the right thing, and take an incredible amount of abuse for it 
(I speak from personal experience).  Your best bet is education (not about 
antenna physics and contesting, by the way, (too much eyes glaze over), but 
perhaps, how property values aren't really affected all that much), and, 
most important, a realization that "You might NOT get what YOU want, even 
if YOU think it's reasonable!"... you have to be willing to walk away and 
find another solution (e.g. move to Wyoming, develop stealth phased arrays 
and run QRO, choose another activity to pursue)


Jim, W6RMK