On Sat, 10 Mar 2007 10:12:14 CST, Cecil Moore
wrote:

Did you previously agree to the restrictions?
If so, it is likely a legally enforceable contract
between you and the other party.

Cecil, look up the term "contract of adhesion" in a legal text on
contracts. It is a "take it or leave it" situation where there is no
real bargaining.

In California, where I practice state law, a deed restriction or HOA
regulation can be declared unenforceable if it is found to be
unreasonable but the burden of proof of unreasonableness is on the
homeowner seeking relief.
--

73 de K2ASP - Phil Kane
ARRL Volunteer Counsel

email: k2asp [at] arrl [dot] net

Phil Kane wrote:
On Sat, 10 Mar 2007 04:38:34 CST, "Bill Horne, W1AC"
wrote:

I think homeowners are justified in seeking relief from _government_
regulation of antennas, since such rules are not the sort of thing local
governments do well. Deed restrictions, however, are something I think
the government should stay out of unless there's a _very_ compelling
public interest.

But there is a compelling public interest, Bill, there certainly is.
--


Phil,

Not being a lawyer, I won't attempt to argue the law with you ;-).

I think that "public interest" is, by its nature, subject to debate.
It's also something that is debated only when the "public" doesn't know
what's good for it: after all, if everybody agreed that there should be
hams and that they should have antennas, there would be no problem. That
means that decisions about public interest _always_ involve political
risk, and politicians are the most risk-averse group on the planet.

I have said before, and will repeat he there used to be a de facto
agreement between hams and the military. We were a trained pool of
operators who could be drafted and placed in service quickly during
wars: that's why the NTS is a mirror of the military network model.
Since the military wanted hams to be (pardon the pun) up to speed, it
defended our frequency assignments in an era when there was fierce
competition for HF from short-wave broadcasting, point-to-point
services, and even other government agencies.

Times have changed: military electronics are too complicated and secret
for civilian training to be meaningful, and code is passé, so hams
aren't high on the pentagon's list-of-friends right now. Ergo, no free
ride at the allocation conferences or inter-agency sessions, and no
"public interest" in keeping hams on the air.

In addition to the military connection, we were also the beneficiary of
the government's push to increase science education in the wake of the
Sputnik panic and ensuing Apollo programs during the cold war. Movies
and periodicals showed hams as young wizards, with attendant benefits:
our neighbors, by and large, admired us and looked the other way when we
wanted a beam.

However, that is also in the past. International phone calls are now
routine, cell phones have removed any sense of wonder from mobile radio,
the Internet has given curious children access to different points of
view and cultures from all over the world. Small wonder, then, that
aging baby-boomers, eager for their own quarter-acre of paradise, have
endorsed deed restrictions and other ways to prevent their neighbors
from darkening their view of the skyline.

So, we come to the question of what the public "needs". We hams are no
longer valuable just for our everyday skills, such as Morse, and we're
not nearly good enough at providing other public services that might
justify overriding local ordinances. Unless Uncle Sam can be convinced
that Amateur Radio is once again relevant and worth keeping, I don't see
the government stepping in where contracts are involved: there's too
much political risk and no pressing need for intervention.

YMMV.

Bill

--
73,

Bill W1AC

(Remove "73" and change top level domain for direct replies)

On Mar 12, 12:54?am, Phil Kane wrote:
On Sun, 11 Mar 2007 20:57:50 CST, wrote:
The simple solution of "don't buy a restricted property"
works well in some places and not in others. It all depends
on what houses are for sale in an area when *you* need to
move. In some areas, there's no shortage of affordable
unrestricted homes for sale, but in others, they are
essentially nonexistent.

As you know, Jim, we passed up three homes which were better and nicer
than the one we got because of restrictive covenants or in one case a
"thick" local zoning authority which was known to not understand what
"reasonable accommodation" is all about.

Hello Phil,

Yes, I remember that.

Here's another example:

I moved to this house in October of 1999. It has no
anti-antenna restrictions at all. However, it *does* have
a page and a half of fine print deed restrictions about
what can and cannot be done with the property. The
house was built in 1950, too.

Those deed restrictions were unknown to the seller and
the real estate agents. My real estate attorney and I
found them by reading the deed/title (can't remember
which) and finding a reference in there to "all other
restrictions filed...." That led us to the County Courthouse,
where the restrictions had been filed for the whole
development a half-century earlier. If I hadn't pushed the
issue, I never would have known about the restrictions.

Some might say that it's just due diligence to look up
everything about a property before buying. That's true,
but often it's not practical. When the RE market was hot
here, houses were often under contract the day they
went on the market. Even now, with higher interest rates,
good homes don't stay on the market more than a few days.

As you know, disclosure laws vary from state to state.
Who is going to walk away from a sale at the last
minute because they were informed of restrictions at the
closing?

To me, the most ominous facet of deed restrictions and
covenants is that they are designed to be unchangeable
forever. When it comes to laws, zoning codes and
ordinances can be changed, variances can be allowed, etc., but deed
restrictions and covenants do not fall under
their jurisdiction. As properties have boilerplate restrictions
added, the number of ham-friendly homes drops.

I'm assisting in a case this coming week on just that issue.
--
Excellent! Good Luck!

73 de Jim, N2EY

Phil,

And California is one of the lucky states where there is at least the
potential for relief from unreasonable CC&Rs. Not many do, as you
know.

It also seems somewhat atypical of California. Where I live, there
has been an increasing stream of people moving to escape, their word,
California nuttiness. Of course, they are promptly surprised to find
out that they are expected to get along with their neighbors without
endless rules, regulations, CC&Rs, etc. Quite a culture shock, but
after a couple of years they fit right in.


--
Alan
WA4SCA

Phil Kane wrote:
Cecil, look up the term "contract of adhesion" in a legal text on
contracts. It is a "take it or leave it" situation where there is no
real bargaining.

When I bought my house in CA, I amended the antenna
restriction portion of the contract. When the
neighbors objected to my antennas, I dragged out the
contract and showed them the marked out section
initialed by me, the seller, and the planning
commission. It probably would not have stood up in
court but it never got that far. I was sorta like
that ham in Lubbock, TX. Did you see that video?
--
73, Cecil http://www.w5dxp.com

On Mon, 12 Mar 2007 11:18:20 CST, Cecil Moore wrote in :
Phil Kane wrote:
Cecil, look up the term "contract of adhesion" in a legal text on
contracts. It is a "take it or leave it" situation where there is no
real bargaining.

When I bought my house in CA, I amended the antenna
restriction portion of the contract. When the
neighbors objected to my antennas, I dragged out the
contract and showed them the marked out section
initialed by me, the seller, and the planning
commission. It probably would not have stood up in
court but it never got that far. I was sorta like
that ham in Lubbock, TX. Did you see that video?

No, actually. I haven't, and I suspect a lot of the other denizens of
this fine group haven't and would like to. URL?

--
Death is just Mother Nature's way of telling you
to Slow Down.

On Sun, 11 Mar 2007 22:35:28 CST, Cecil Moore
wrote:

But the antenna must be
used *only* for TV reception - not ham radio, Wi-Fi, FM radio, SW
radio, public service, etc.

One more example of an irrational federal
government completely out of control. What
ever happened to "We The People"?

That was the deal worked out with the satellite TV folks, who could
care less about the other services. You may consider it "out of
control". I consider that they finally took at least one baby step
towards the right goal.

Money talks. Big Money talks loudly.
--

73 de K2ASP - Phil Kane

From a Clearing in the Silicon Forest
Beaverton (Washington County) Oregon

e-mail: k2asp [at] arrl [dot] net

On Mon, 12 Mar 2007 06:44:44 CST, "Bill Horne, W1AC"
wrote:

Unless Uncle Sam can be convinced
that Amateur Radio is once again relevant and worth keeping, I don't see
the government stepping in where contracts are involved: there's too
much political risk and no pressing need for intervention.


You are aware, aren't you, that Amateur Radio has been integrated into
Homeland Security as a necessary civilian resource. Here. we are the
backup for the county's and cities' public safety and hospital
communications and we are used for real-fife situations regularly.

International treaties and Congressional legislation specifically
provide valuable spectrum resources for Amateur Radio on an exclusive
basis. That sounds like "relevant", "public interest", and "worth
keeping" to me.
--

73 de K2ASP - Phil Kane

From a Clearing in the Silicon Forest
Beaverton (Washington County) Oregon

e-mail: k2asp [at] arrl [dot] net

In article .com,
wrote:

"Regular" TV broadcast reception was also included, if the TV antenna
did not exceed a certain size and wasn't more
than a certain height above ground. But the antenna must be
used *only* for TV reception - not ham radio, Wi-Fi, FM radio, SW
radio, public service, etc.

Actually, it isn't just for TV reception:

http://www.fcc.gov/mb/facts/otard.html

--------

"Fixed wireless signals" are any commercial non-broadcast communications
signals transmitted via wireless technology to and/or from a fixed
customer location. Examples include wireless signals used to provide
telephone service or high-speed Internet access to a fixed location.

----------

I have friends who have HOA restrictions but had no problem putting
up antennas for Sprintlink (wireless Internet access) because of the
OTARD rules.


Patty N6BIS

On Mar 12, 8:00�pm,
) wrote:
In article .com,

wrote:

"Regular" TV broadcast reception was also included, if the TV antenna
did not exceed a certain size and wasn't more
than a certain height above ground. But the antenna must be
used *only* for TV reception - not ham radio, Wi-Fi, FM radio, SW
radio, public service, etc.

Not exactly - see below. My mistake!

Actually, it isn't just for TV reception:

http://www.fcc.gov/mb/facts/otard.html

--------

"Fixed wireless signals" are any commercial non-broadcast communications
signals transmitted via wireless technology to and/or from a fixed
customer location. Examples include wireless signals used to provide
telephone service or high-speed Internet access to a fixed location.


Thanks for the info!

Unfortunately, the same link says that amateur radio is specifically
*not* included in the preemption.
----------

I have friends who have HOA restrictions but had no problem putting
up antennas for Sprintlink (wireless Internet access) because of the
OTARD rules.

That's a step in the right direction, but we hams are still outside
that
fence looking in.

And the preemption is specific about size and height of
antenna. Even if ham radio were included, a simple wire
antenna like the G5RV would not be covered.

Thanks again for the info.

73 de Jim, N2EY