HOA CC&R Variance Approval

[wb8yqj]

What is the name of your state (only U.S. law)? California

MAKING IT STICK - LEGALLY CC&R/Variance

Can anyone tell me, lets say the BOARD at your HOA in CALIFORNIA decides to allow your 30 foot antenna mast in the back yard. They tell you the great news after they meet about it. You get a piece of paper on Mangement Company letterhead saying the BOARD approves of the mast at your own address since you have a large wooded backyard, so the BOARD has voted to relieve your specific address from the "no antennas" clause in the CC&R association rules. When neighbors or prospective neighbors ask about the mast, you simply show them the paper, and of course it has the backing and goodwill of the BOARD.

Two years later, there is a new BOARD, and the Management Company has folded.

The new BOARD receives a complaint about an eyesore in the neighborhood (your property) and say they know nothing about any approval from any past BOARD.

How does one bolster their informal appproval (could be any type of CC&R variance from doghouse to flagpole) into something that might be respected across changing HOA BOARD members and time?

TIA,
Don Rasmussen
Carlsbad, Ca.What is the name of your state (only U.S. law)?

 

[justalayman]

The new BOARD receives a complaint about an eyesore in the neighborhood (your property) and say they know nothing about any approval from any past BOARD.

so show them your letter of approval and all should be good.

How does one bolster their informal appproval (could be any type of CC&R variance from doghouse to flagpole) into something that might be respected across changing HOA BOARD members and time?

Informal approval? You didn't say anything about an informal approval

Either they approved it as required by the bylaws or you do not have an approval at all. What you have is a statement the current board members will turn a blind eye to the illegal installation. It was never even binding on them even. It appears the new board doesn't want to play along so now you will be subject to the rules as they apply to the HOA forcing a member to bring their property into compliance with the rules.

 

[wb8yqj]

Informal approval? You didn't say anything about an informal approval

I am suggesting that a document from a folded management company might hold no weight. I am told, if I take that Management Company document to the county clerk after notarizing it, that maybe I have something with a little more weight, something that might stand up better in the future. I'd appreciate any comments on this.

Problem is, antennas are an easy way to start a witch hunt, somebodys toaster acts up, or their garage door, and they look across the street at some metal high in the air and next thing you know the finger of blame is pointing your way.

Law says, none of your neighbors nor HOA can dictate anything with respect to radio, that is FCC jurisdiction alone. But they can sure go after your pole as an architectural item and thats how they do it.

 

[justalayman]

getting a letter of an informal (read: not legally dependable) approval notarized and recording it will mean you have an unenforceable invalid approval to install the tower. It still won't make it a legally dependable approval.

There are rules to follow when allowing a variance and unless those rules were followed, the letter is meaningless. So, either the old board followed the rules in place so as to be able to allow the variance or they didn't.

If they did, fight away.

If they didn't, I suggest you comply with the demand to bring your property into compliance or face the possible fines, fees, and legal costs when the HOA sues you.

 

[wb8yqj]

There are rules to follow when allowing a variance and unless those rules were followed, the letter is meaningless.

This is the reason I am here justalayman, I need to find out what these specific rules are and how to follow them. Hoping for some guidance from this forum but maybe I just need to visit a paid for attorney and get the business done.

 

[justalayman]

the rules would be held by the board of your HOA. They are individual to each HOA. They are not laws. There is no way I can tell you what your rules are as I have no access to them. Ask your HOA for a copy of the CC&R's and the HOA bylaws.

 

[FlyingRon]

Further if the mast/antenna is some sort of TV antenna (either regular over-the-air or satellite dish), the CCRs can *NOT* be enforced. There's a broad federal preemption on this.

 

[You Are Guilty]

Further if the mast/antenna is some sort of TV antenna (either regular over-the-air or satellite dish), the CCRs can *NOT* be enforced. There's a broad federal preemption on this.

So in the face of CCRs that prohibit such actions, I can erect a 200' high mast antenna in my front yard, but as long as I can receive NPR on it, the HOA is powerless? Really?

 

[colourfastt]

So in the face of CCRs that prohibit such actions, I can erect a 200' high mast antenna in my front yard, but as long as I can receive NPR on it, the HOA is powerless? Really?

As directed by Congress in Section 207 of the Telecommunications Act of 1996, the Federal Communications Commission adopted the Over-the-Air Reception Devices (“OTARD”) rule concerning governmental and nongovernmental restrictions on viewers' ability to receive video programming signals from direct broadcast satellites ("DBS"), broadband radio service providers (formerly multichannel multipoint distribution service or MMDS), and television broadcast stations ("TVBS").

The rule (47 C.F.R. Section 1.4000) has been in effect since October 1996, and it prohibits restrictions that impair the installation, maintenance or use of antennas used to receive video programming. The rule applies to video antennas including direct-to-home satellite dishes that are less than one meter (39.37") in diameter (or of any size in Alaska), TV antennas, and wireless cable antennas. The rule prohibits most restrictions that: (1) unreasonably delay or prevent installation, maintenance or use; (2) unreasonably increase the cost of installation, maintenance or use; or (3) preclude reception of an acceptable quality signal.

Effective January 22, 1999, the Commission amended the rule so that it also applies to rental property where the renter has an exclusive use area, such as a balcony or patio.

On October 25, 2000, the Commission further amended the rule so that it applies to customer-end antennas that receive and transmit fixed wireless signals. This amendment became effective on May 25, 2001.

The rule applies to individuals who place antennas that meet size limitations on property that they own or rent and that is within their exclusive use or control, including condominium owners and cooperative owners, and tenants who have an area where they have exclusive use, such as a balcony or patio, in which to install the antenna. The rule applies to townhomes and manufactured homes, as well as to single family homes.

The rule allows local governments, community associations and landlords to enforce restrictions that do not impair the installation, maintenance or use of the types of antennas described above, as well as restrictions needed for safety or historic preservation. Under some circumstances where a central or common antenna is available, a community association or landlord may restrict the installation of individual antennas. The rule does not apply to common areas that are owned by a landlord, a community association, or jointly by condominium or cooperative owners where the antenna user does not have an exclusive use area. Such common areas may include the roof or exterior wall of a multiple dwelling unit. Therefore, restrictions on antennas installed in or on such common areas are enforceable.

This Information Sheet provides general answers to questions concerning implementation of the rule, but is not a substitute for the actual rule. For further information or a copy of the rule, contact the Federal Communications Commission at 888-CALLFCC (toll free) or (202) 418-7096. The rule is also available via the Internet by going to links to relevant Orders and the rule.

Q: What types of antennas are covered by the rule?

A: The rule applies to the following types of antennas:

(1) A "dish" antenna that is one meter (39.37") or less in diameter (or any size dish if located in Alaska) and is designed to receive direct broadcast satellite service, including direct-to-home satellite service, or to receive or transmit fixed wireless signals via satellite.

(2) An antenna that is one meter or less in diameter or diagonal measurement and is designed to receive video programming services via broadband radio service (wireless cable) or to receive or transmit fixed wireless signals other than via satellite.

(3) An antenna that is designed to receive local television broadcast signals. Masts higher than 12 feet above the roofline may be subject to local permitting requirements.

In addition, antennas covered by the rule may be mounted on "masts" to reach the height needed to receive or transmit an acceptable quality signal (e.g. maintain line-of-sight contact with the transmitter or view the satellite). Masts higher than 12 feet above the roofline may be subject to local permitting requirements for safety purposes. Further, masts that extend beyond an exclusive use area may not be covered by this rule.

For the full text, see: FCC Fact Sheet on Placement of Antennas

 

[justalayman]

Masts higher than 12 feet above the roofline may be subject to local permitting requirements.

local permitting requirements; would the HOA be a local permitting agency? It does not state local governmental control, merely local.


and it has not been clarified as if this is applicable:

Further if the mast/antenna is some sort of TV antenna (either regular over-the-air or satellite dish), the CCRs can *NOT* be enforced. There's a broad federal preemption on this.

and due to this:

Law says, none of your neighbors nor HOA can dictate anything with respect to radio, that is FCC jurisdiction alone.

and this:

Problem is, antennas are an easy way to start a witch hunt, somebodys toaster acts up, or their garage door, and they look across the street at some metal high in the air and next thing you know the finger of blame is pointing your way.

and I suspect this is an antennae for a transceiver rather than just a receiver. There is no reason to suspect an antennae for only receiving purposes when it comes to problems with your toaster or garage door.

Unless it happened to cause the lighting to strike and travel to the other electrical systems.

 

[colourfastt]

local permitting requirements; would the HOA be a local permitting agency? It does not state local governmental control, merely local.


and it has not been clarified as if this is applicable:



and due to this:


and this:




and I suspect this is an antennae for a transceiver rather than just a receiver. There is no reason to suspect an antennae for only receiving purposes when it comes to problems with your toaster or garage door.

Unless it happened to cause the lighting to strike and travel to the other electrical systems.

The 'local permitting agency' would be the city and/or county council, the zoning board, and/or the FAA if the mast is within a certain distance of an airport.

 

[justalayman]

The 'local permitting agency' would be the city and/or county council, the zoning board, and/or the FAA if the mast is within a certain distance of an airport.

and the support for that? Laws often give notice to rules imposed by subdivisions.