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#21
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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 |
#22
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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) |
#23
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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 |
#24
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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 |
#25
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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 |
#26
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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. |
#27
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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 |
#28
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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 |
#29
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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 |
#30
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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 |
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