By Chris Imlay, W3KD
ARRL General Counsel
From December 1995 QST

• How Do Covenants Differ From Zoning Ordinances?
• So Who Enforces These Covenants?
• Antenna Covenants
• How About PRB-1?
• What's in the Future?

Jim Rich, WD6CJB, woke up one morning to find that, during the night, someone had accidentally crashed a car through his fence. That wasn't much of a problem all by itself--the insurance company would cover the fence repair--the unfortunate part was that Jim's multiband HF dipole antenna that was mounted on the inside of the fence, was destroyed. The dipole had not been effective for what Jim Rich wanted to do in Amateur Radio--emergency and public service work--so he figured that it was time to put up something better anyway. That decision began the nightmare that Jim didn't have the night before.

 

Jim And CC&Rs

Jim went to the zoning authorities for the City of Foster City, a group of subdivisions in a planned community south of San Francisco, and asked for a building permit for a 35-foot crank-up antenna support and a small triband Yagi antenna. He was promptly denied such; the mayor and council members went out of their way to keep this "scourge" out of the neighborhood. They were not successful, because the zoning ordinance in Foster City was plainly preempted by the FCC's Amateur Radio Preemption policy.[1] The thing about Foster City, though, was that when it was first formed, there was not any zoning ordinance (or local government) in the town. Instead, all of the subdivisions had identical declarations of covenants--often called deed restrictions, or "CC&Rs" (covenants, conditions and restrictions)--that governed land use in each subdivision. When the town adopted zoning ordinances to deal with land use details, the homeowner's associations in the Foster City subdivisions gradually faded away. They were no longer necessary.

The covenants, although dormant, were still in place, and they bound each successive purchaser of land in Foster City. The covenants provided, as do most, that any home-owner could enforce them against any other homeowner. And in Foster City, the CC&Rs prohibited all antennas of every type that are outside the house, above the roof, and not under the eaves. The restriction is absurd, as a practical matter--there are television antennas on numerous houses. When the City of Foster City found out that it couldn't prohibit Jim Rich's modest antenna system, Jim got his building permit. However, the municipal government did all it could to encourage the formation of a group of neighbors (most of whom can't even see Jim's antenna) to enforce the long-dormant and unenforced covenants against Jim. Thus began about four years of litigation. Jim's case ate up thousands of dollars of Jim's money, caused untold emotional impact on Jim and his wife, and resulted in many hundreds of hours of donated time by two very dedicated and talented ham lawyers in northern California [2] in the efforts to protect Jim's ability to install and keep a modest 35-foot crank-up antenna.

 

How Do Covenants Differ From Zoning Ordinances? 

Many hams are not aware of the differences between zoning ordinances and covenants. The two are radically different in terms of their legal status and how they are likely to affect an amateur. It is useful to understand covenants not only from the viewpoint of the ham who appears to be at the mercy of his or her neighbors, but as well as from the point of view of the real estate developer, who has created the problem for the radio amateur in the first place.

Suppose you are a real estate developer, who looks forward to a financially successful subdivision development project. Financing a subdivision and the construction of houses requires that you borrow money from a bank. You then acquire the land for the subdivision, file a subdivision plat with the county or city, and begin construction of houses. Your interest is in getting your houses built and sold quickly, so you can pay off the bank, pocket your profits, and move on to the next project. The process of selling off the houses in your subdivision, however, may not go as fast as you would like, and perhaps you have to keep a few houses for some time. Since the last few houses sold represent, for the developer, the profit in the subdivision project (the bank has to be paid off first), what you don't want is for one of the earlier purchasers of a house in the subdivision to paint pink camels on the front of his house before you can sell off all remaining houses. Some potential home buyers might find the camel paintings unattractive. That would make it difficult for you to sell the last few houses. But what can you do to prevent the pink camel painting? You already sold the painter his house. It isn't yours anymore, and the zoning ordinances don't address pink camel painting.

The answer comes from the old English common law, from where have derived our law and procedures for property ownership and land transactions. Covenants have been placed on land for many years, and have evolved as a means of private land use restriction. Some covenants, in addition to regulating the use of the land itself, seek to regulate even the behavior of those who own the land.[3] Covenants are created when the developer files, with the land records, and usually together with his or her subdivision plat at the time land is subdivided for development, a declaration of covenants. These restrictions on the use of land are applicable to all parcels of land in the subdivision. So, just by buying the land, a buyer becomes subject to the restrictions applicable to the property bought.

Simply stated, covenants are promises that the buyer of land makes as a condition of purchasing the land in the first place, from either a developer or a previous owner. Because the covenants are filed with the land records in the county or city where the land is located, and because they are referred to in your deed, you aren't even required to be fully aware of the specifics of the covenant restrictions when you go to closing on the land.[4] Since they show up in the "chain of title" to your land, the buyer of the land has what is called "constructive notice" of the covenants, and therefore he or she is charged with the knowledge of them. In other words, you are expected to know what is in the covenants, even though you may not have actual knowledge of the restrictions in them. In many states, this is enough all by itself to require that the buyer comply with all of their provisions. The situation is another expression of the concept that "ignorance of the law is no excuse."

 

So Who Enforces These Covenants?

Initially, the developer retains the rights to enforce the covenants, since they are to his or her benefit in the first place. Remember that the developer wants the homes in the subdivision to pretty much stay the same, in terms of appearance, until he or she can sell off all the houses and take his or her profit and go on to the next development project. After that, the normal provision is for the enforcement authority to be delegated to a homeowner's association or an architectural control board formed by the declaration of covenants. Sometimes these associations exist for a while and then disappear. If there is no association, does the enforcement authority disappear as well? Sadly, no. In most states, individual homeowners, who are supposedly benefited by the covenants, also have the right to enforce the covenants as well.

 

Antenna Covenants 

Covenants regulating antennas come in various forms. According to studies commenced by creative communications lawyer and professor Wayne Overbeck, N6NB, antenna covenants take three typical forms: (1) covenants that prohibit all outdoor antennas, (2) covenants that prohibit all radio transmitting devices on the premises, and (3) those that require, prior to installing any "structure" outside the house, the approval of the homeowner's association.

Suppose you buy a house in a subdivision subject to CC&Rs and then become a ham and want to put up an antenna. If you can't get the approval of the association to do so, what do you do? Simply putting up an antenna in violation of the covenants is not necessarily a good plan, because many homeowner's associations, funded by regular, mandatory dues from homeowners in the subdivision (as provided in the declaration of covenants) are charged with the enforcement of the covenants, and are financially able to bring a lawsuit against you to do just that. Indeed, if they don't bring an enforcement suit against you, other neighbors might sue the association for failing to do its job. The worst part about it is that, if you are sued by the association and lose the case, or if you sue the association and lose, attorney's fees incurred by the association (and occasionally, fees incurred by individual home-owners) are, according to many covenants, assessed against you. If you don't pay the fees, the debt continues to haunt you in the form of a lien on your property.

There are common-law defenses against covenants, but they are not used very much, and their effectiveness has been reduced over the years. However, if there are multiple violations of an antenna covenant in a neighborhood (such as the unchallenged existence of other amateur antennas, CB antennas, satellite dishes, or television antennas), then that is good evidence that the covenants prohibiting antennas are abandoned or waived. If you are told by the association that an antenna installation will be acceptable, that approval, if you can prove that it was given, makes enforcement of the antenna covenant difficult for the association later. And if you have an antenna up for a number of years in violation of the covenant, and if it is visible and obvious to others during that time, it is unlikely that the covenant could be enforced at a later date. But beware of these defenses, as they are not absolutely available. Jim Rich noted in his case that there were antennas in the neighborhood, but the judge decided that they were minimal by comparison to his 35-foot crank-up tower and standard triband Yagi, and did not constitute a waiver or abandonment of the covenants.

 

How About PRB-1?

Nor does the FCC's PRB-1 preemption order apply to covenants. It specifically disclaims any application to covenants, which FCC describes as "private contractual agreements." It said that "Such agreements are voluntarily entered into by the buyer or tenant when the agreement is executed and do not usually concern this Commission."[5]

Why would the FCC conclude that PRB-1 did not apply to covenants, while it did apply to zoning ordinances? Surely, covenants that preclude antennas have the exact same effect on the strong Federal interest in promoting Amateur Radio communication as do zoning ordinances. Remember, though, that zoning ordinances are actions of local government, imposed to protect the health, safety and general welfare of the public. State and local laws may be preempted by the Federal law, where the state laws conflict with the Federal law, according to the Constitution of the United States. Covenants, on the other hand, are not governmental actions. They are, in theory, private "agreements" between a buyer and a seller of land. Therefore, they are insulated against intrusion by the Federal government.

There are exceptions to this, however. Racial covenants were declared invalid in 1948 in a famous Supreme Court case called Shelley v. Kraemer.[6] There, the Supreme Court said that where the state courts were called on to enforce a covenant, those covenants that violate a fundamental right should be held invalid. If the FCC had said nothing about covenants in the preemption policy of PRB-1, it might be argued that the "strong Federal interest" in amateur communication is sufficient to support preemption of covenants. However, the Commission's disclaimer of an interest in covenant preemption has made that argument difficult.

The FCC explained its rationale for avoiding the preemption of covenants in PRB-1 by saying that "Purchasers or lessees are free to choose where they wish to reside where such restrictions on amateur antennas are in effect or settle elsewhere." Is that so? Tell that to a person attempting to purchase a home in any of hundreds of other cities in the United States. Studies by Overbeck, N6NB, and others showed that virtually all new housing developments in metropolitan Los Angeles, for example (most less than 20 years old), were subject to antenna covenants. The assumption of the FCC (and of the courts that routinely enforce covenants now) is that it is possible to purchase a home without covenants, so the purchase of a home with covenants is a voluntary act. The assumption fails, however, where the covenants cannot be avoided, subjecting the amateur to having to purchase a house with covenants, or else endure a two-hour commute to work each morning in order to pursue Amateur Radio. There simply is no choice in most metropolitan areas these days, and the situation is getting worse all the time.

 

What's in the Future?

FCC is now reevaluating its land use preemption policies. It is looking at satellite dish preemption again, and soon will consider preemption of local restrictions on cellular and PCS antennas. FCC has promised to revisit its amateur preemption policies at the same time. It would be reasonable in that context for the Commission to state that it has no less interest in the effective performance of an amateur station merely because it is regulated by covenant restrictions rather than zoning, and at least allow the amateur to make his or her own argument, in the courts, that certain covenants may be preempted.

Until then, the best solution to the covenant problem is to avoid purchasing a house with deed restrictions, or make your offer on the house contingent on your ability to install a reasonable antenna. Put the burden of getting that approval on the seller. If you are already in a subdivision with deed restrictions, get on the board of the home-owner's association and use some politics. Meanwhile, the League will continue to work for some regulatory reform to deal with antenna covenants and other deed restrictions. If you have a covenant problem, let the Regulatory Information Branch at Headquarters know about it.

 

And What Happened to Jim Rich?

Just before press time, and after over seven years' struggle, Jim's antenna case is finally over. A settlement was reached on October 10, whereby Jim will pay the plaintiffs $6,000 of the $13,000 in fees awarded by the trial judge, both sides will dismiss their appeals, the plaintiffs will release the lien they had on Jim's home, and plaintiffs will not complain about the wire antenna Jim has strung along his fence at a height of five feet.

The trial judge determined that the FCC had the ability to deal with the CC&R issue, but that they had ducked the issue with a footnote in PRB-1. The judge concluded that is was not appropriate for the court to overturn well-settled land law use to address something the FCC itself was unwilling to address.

Rusty Epps, W6OAT, who supplied this late-breaking information, commented that "No one is happy with the settlement terms, so that probably means that it's a pretty good compromise solution!"

 

Notes

[1] See, PRB-1, 101 FCC 2d 952 (1985), codified at 47 C.F.R. §97.15(e). See also, Chris Imlay, N3AKD, "PRB-1, Seven Years Down the Road," QST, Oct 1992. pp 35-37.

[2] The trial law skills of Kip Edwards, W6SZN, and Rusty Epps, W6OAT, and their amazing tenacity and generosity, are stories in themselves.

[3] A good example of this is the prohibition of parking recreational vehicles or boats, or even cars with antennas, in the driveways of houses in subdivisions with CC&Rs.

[4] This is changing by statute in many states; now, it is often required that a buyer of land be given a copy of the CC&Rs prior to closing, at least when buying from a developer.

[5] Amateur Radio Preemption, supra, footnote 6.

[6] 334 U.S. 1 (1948). For a good analysis of the arguments in favor of Federal Preemption of CC&Rs governing antennas, see Sid Leach, Esq, K5XI, "Federal Preemption of Deed Restrictions," The DX Magazine, May/Jun 1993, pp 36-40.