Since neither Frank nor I are lawyers we depend on our volunteer counsel for stuff like this. Biff Craine, K4LAW, is a land-use attorney in Tampa Florida. Also a volunteer counsel. He took Chris Imlays course in Miami in February. I sent him the letter Dick circulated to get his reaction and he came back with this reply to continue the discussion I am forwarding it on to you. 73 Sandy, W4RU --- Sandy Donahue <w4ru@bellsouth.net> wrote:
From: "Sandy Donahue" <w4ru@bellsouth.net> To: <w4ru@yahoo.com> Subject: Fw: Covenants, Pre-emption, and League Policy Date: Sat, 1 Jun 2002 19:27:25 -0400
----- Original Message ----- From: "Biff Craine" <scraine1@tampabay.rr.com> To: <w4ru@bellsouth.net> Sent: Saturday, June 01, 2002 7:12 PM Subject: RE: Covenants, Pre-emption, and League Policy
Well Sandy he is right about most of the major points in his letter.
That being said, I think it is important to have this dialog at this time (the paranoid post 9/11 world). It will never be a better time for us.
Will we fail? Probably. But the issue needs to be raised. In the legislative process, good things can come from failed legislative attempts at change.
Will we draw the wrath of well-heeled lobbying groups? Damn right. But we need to get those people in the open and have a dialog with them.
Should the ARRL use resources on this effort? Absolutely. It is one of the top issues on the mind of many hams who do not have the luxury of owning in a non restricted area. I just got off the phone with a guy who is moving to the area to work as the chief engineer at Channel 38 here and he called me because he and his wife saw my tower when they were looking for homes. He actually wanted to buy mine, although I think he may have been joking. He is a CW operator too! His question to me was where in this area can I buy something and enjoy my hobby.
Will league members be frustrated. Yes. Too many hams feel that because something is good for ham radio that it is good for the world. That is not the case. We are poorly organized (politically) and even though I think we are collectively more powerful in Washington than we deserve to be based on our level of participation in politics (read $$$$$). Hams hopefully will take it out on Congress rather than the league.
So while I agree with most of his points, I still think this is a most important effort. Get this issue on the table, see where the enemies are, see what their best shot is, and work for effective compromise. It is a contract issue, however, terms of contracts that are against public policy will not be enforced by the courts. The trick is to make reasonable accommodation the public policy of the country. Ambitious and probably not doable, but very clearly worth the effort.
-----Original Message----- From: Sandy Donahue [mailto:w4ru@yahoo.com] Sent: Saturday, June 01, 2002 18:27 PM To: k4law@arrl.net Subject: Covenants, Pre-emption, and League Policy
Biffster-Pretend you are on the BOD of the ARRL and received this letter concerning the bill before Congress to kill CC&Rs. It is from a fellow Volunteer Counsel in Illinois and addressed to the Central Division Director. How would you respond? 73 Sandy
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Delivered-To: dick@pobox.com :
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:: : Date: Fri, 31 May 2002 22:31:51 -0500 From: John Swartz <jswartz@eosinc.com> Reply-To: wa9aqn@arrl.net User-Agent: Mozilla/5.0 (Windows; U; Win95; en-US; rv:0.9.4) Gecko/20011019 Netscape6/6.2 X-Accept-Language: en-us : To: Dick Isely <dick@pobox.com> Cc: w5jbp@arrl.org Subject: Covenants, pre-emption, and League policy : :
Dick,
I want to give you my 2 cents, since you are the one with the vote at the Board.
I urge caution in the League's approach to the proposed legislation which would legally equate private covenants with municipal regulation in the field of amateur antenna restrictions.
I fear that the League, and its members, may divert valuable resources from pursuits that probably have greater liklihood of encouraging growth in the amateur service. That is not to say that the legislation should not be supported, but that it should not be a major focus of policy to protect the future of amateur radio.
First, lobbying for this measure will pit the League against an array of very powerful, connected, and politically savvy interests. Real estate developers and brokers, mortgage bankers and financing interests are likely to view a federal assault on the primacy of private contracts to be a juicy target. I would imagine that anyone with any political experience would caution that the lobbying effort could become extremely expensive. That kind of drain on League resources should be examined very carefully. And, a part of me says that without a PAC, our efforts are doomed anyway, but that is just too cynical an approach.
Second, the measure may raise false expectations in the amateur population about the prospects for success. The adoption of the bill may give some amateurs an advantage in negotiating for some relief from covenants and restrictions, but in the end, the courts will be called upon to examine the measure and to pronounce upon its constitutionality. Some amateurs will spend a lot of money in lawyers fees chasing this Holy Grail. Some will lose, and some will lose big. Some may prevail by achieving settlements if they can afford to outspend the homeowners' associations. Someone will eventually pay a very big price for a long, drawn out legal battle which may be doubtful in its outcome. The League should not underestimate the depth of our legal system's protection of private property interests and the sanctity of covenants and restrictions on uses of property. It is extremely doubtful that the courts will treat the minority interest of amateur radio operators as anything akin to the interests of suspect classifications such as race, religion, or ethnicity. And, we simply do not have a First Amendment right to whatever aluminum sculptures our hearts desire to tickle the ion layers. Nor am I aware of any court holding such covenants or restrictions to be "contracts of adhesion." Rulings of that nature would threaten the foundations of the real estate industry, and you can bet all your antennas and more that those interests will not stand by without some very expensive fights.
Amateurs who then rely on such legislation, assuming it could be passed, run the risk of some very expensive litigation, for which they will undoubtedly seek help from the League. The failure of amateurs in court battles could certain damage the League with its members and prospective members.
Amateur radio must evolve, and the impact of covenants and restrictions must not be allowed to strangle amateur radio when alternative strategies may help save, or help our hobby to evolve in the new electronic age.
Covenants and restrictions certainly do inhibit the growth of the hobby in some measure. How significant that is may be debated. Perhaps the future of amateur radio will not include the powerful HF-DX-contest capable shacks of single family residences that we have largely enjoyed for almost 100 years. That seems more likely in our populated urban and suburban settings, but it is not something entirely new. I recall that the Chicago suburb in which I grew up adopted a zoning regulation restricting antennas to 15 feet above the roof peak in about 1966 or 1967. Developers have been including restrictive covenants since the proliferation of community antenna or cable television. This is not a problem that has developed overnight.
It is a shame that adults who become interested in amateur radio may be limited in their antenna choices because they had purchased homes in antenna restricted developments prior to being bitten by the radio bug. But it is worse for the future of our hobby that young people, teens and high school kids, may be prevented from achieving their antenna dreams because of the real estate choices of their parents.
The League needs to focus greater attention on alternatives, particularly for our youth, the next generation of electronic geniuses and communications wizards. They should have adequately equipped club stations with teams of competent, engaging and enthusiastic Elmers and Elmerettes to spur them on. With modern technology, they can operate the school club stations from their home computers or through their HT's if they want. We have begun to develop that path with the Big Project. I continue to believe that our youth will be more attracted by the prospects of working their contemporaries 3500 miles away than by working their friends across town. They can do that with FRS radios and CB sets. They can't make those priceless encounters with someone in Sierra Leone, or with the International Space Station except with a ticket from the FCC.
Yes, we should resist the proliferation of unreasonable private restrictions on amateur radio activities, but we should be mindful of
alternative strategies that focus more positively on emerging technologies to encourage the growth of our hobby. I believe that it would be unwise to divert too many of the League's scarce resources to the legislative arena; there will be a long and expensive battle which will not be over until after the courts have addressed the language that may emerge into law if the legislative battle is successful. The primary focus of our available resources should be on the Big Project, and on the development of the club concept. In other parts of the world where individuals are less able to afford good equipment, clubs are successful and exciting ventures. We are truly blessed to be able to afford our glorious HF-DX-Contest palaces, but we should be mindful of the fact that the next generations of amateurs may have something different in their futures.
73, John Swartz WA9AQN Volunteer Counsel, Volunteer Examiner Central Division
-- John Swartz, wa9aqn@arrl.net
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