CHAPTER 31
Zoning, Restrictive Covenants, and Neighbors
“Beauty is in the eye of the beholder.” There is probably no better example of this well-known saying than a tall radio tower topped by a long-boom Yagi antenna. To those of us immersed in the techno-geek world of radio, the sight makes us glow with pride or turn green with envy, depending on whether it is our tower or another’s. But to those who are not similarly enamored of the trappings of radio—including, in many cases, our own family members—that same tower and antenna combination may be a blot on the landscape. Never mind that our country is crisscrossed by thousands and thousands of miles of sagging power lines, held up to our view by bent, warped, stained, and rotted utility poles every few hundred feet along the road for as far as the eye can see.
In an ideal world we’d all be able to afford a few hundred acres “in the country”, where we could pursue our life’s hobby without fear of neighborhood displeasure or municipal sanctions. Even the management of regional cell phone operating companies must feel the same way after being stalled yet another year by an unapologetic town planning board.
In our “civilized” world we all have a mixture of rights and obligations, and a need to balance our own personal interests against those of the larger community in which we live. The difficulty comes when we view the value of our towers and antennas differently than our neighbors and local officials do. Often we feel that objections based on personal aesthetics and biases are being cloaked in ill-conceived restrictions in the name of safety.
Challenges to our erecting towers and antennas for the pursuit of our hobbies or our businesses can come from the public sector (governmental bodies, zoning ordinances, and building codes) or the private sector (restrictive covenants and deed restrictions), and it is important not to confuse the two. Let’s look at each of those separately.
Public Sector Restraints
Public sector regulations impacting allowable antenna and support structure height may be imposed at any level of government.
Federal
In the United States, federal intervention takes two forms:
• Regulations to minimize hazards to aviation from man-made structures that rise far above the average terrain
• PRB- 1, issued by the Federal Communications Commission (FCC) in 1985, preempting certain aspects of local regulation of amateur radio structures
Within the United States the Federal Aviation Agency (FAA) maintains a database of towers and antennas in excess of 200 ft above average terrain and/or close to public airports. It will be necessary for you to notify both the FCC and the FAA prior to constructing a tower or other man-made antenna support structure that rises 200 ft or more above the ground around it. Depending on the specifics of your site, your application may be acceptable, but it will certainly require FAA-approved lighting in all instances.
Additionally, for potential tower installations in the vicinity of existing airports, the FAA has a published formula that sets a maximum height for towers and any antennas on them as a function of distance to the nearest runway. Actually, there are three individual formulas to be concerned with:
• For airports with one or more runways longer than 3200 ft, the top of your antenna or man-made support cannot exceed 1 ft for every 100 ft between the antenna and the nearest part of any runway at that airport. If you wish to put up a 70-ft tower, for instance, you must be at least 7000 ft (or approximately 1.3 mi) from the nearest part of the runway closest to your tower(s).
• For airports with no runways longer than 3200 ft, the top of your antenna or man-made support cannot exceed 1 ft for every 50 ft between your antenna and the nearest part of any runway at that airport. This effectively doubles your allowable antenna height at a given distance from an airport.
• For heliports, the corresponding limit is 1 ft of antenna height for every 25 ft from your antenna and any portion of the helipad that is used for flight operations.
If the elevation above mean sea level (MSL) of the nearby airport is substantially different from that at the base of your proposed tower(s), the calculation may be more complicated than these bullet points indicate. When in doubt, submit an application to the FAA and get a formal ruling for your files.
PRB- 1
A quarter-century ago, the FCC issued a document now familiarly called “PRB- 1”. PRB- 1 conveys “limited federal preemption” of local municipal restrictions on amateur towers and antennas. It is potentially useful to you, depending on the specific objections being raised by neighbors or local officials, but it is not a substitute for a clearly worded permissive ordinance and/or a building permit. Occasionally you may encounter a state or locality that has made blanket adjustments in its zoning ordinance in response to PRB-1, but it’s primarily a tool for your attorney, should you reach that point in negotiations with your county or town.
State
State-level regulation in the United States is rare. Nonetheless, some states have also preempted certain aspects of local zoning with respect to amateur radio structures. An example is Virginia, where paragraph 15.2-2293.1 of the Code of Virginia establishes minimum heights of 200 ft and 75 ft for populous and rural counties, respectively, below which amateurs may not be unreasonably prevented by local jurisdictions from erecting supports. Note, however, that the VA Code does not give the amateur carte blanche; the local zoning body can still require reasonable safety and screening measures, to name just a couple of factors.
Local
The bulk of zoning restraints on amateur radio is local in scope. Although zoning is defined and regulated at the county level in many states, in other states (especially in the Northeast) it falls under the purview of each individual township or city. While allowing the specific requirements of each ordinance to vary according to local needs, the result is a crazy patchwork of rules that makes one’s knowledge of “the way things work” in Podunk of limited usefulness in East Oshkosh.
Nonetheless, some general guidelines and comments are in order:
• There still remain in this country localities with no zoning ordinance at all. For the most part, they are extremely rural and sparsely populated. To install a tower and antennas of virtually any height (under 200 ft, of course), a building permit may or may not be required. This may initially sound like nirvana, but the downside risk is that a restaurant and bar may move in across the street from you next week, complete with neon signs radiating tons of RF energy directly into your specialized receiving antennas.
• Sometimes you will encounter multiple layers of zoning and restrictive regulations collected and administered under the auspices of the local zoning office. State or federal wilderness areas may overlay local zoning districts with other, tighter restrictions. Similarly, a county may invoke a unifying “wrapper” around a collection of unique local ordinances. In many instances, the local ordinance may even list conflicting requirements in different chapters or paragraphs within the same chapter. (A common problem is an overly broad ordinance for cellular and other commercial towers that fails to distinguish between the intended regulation of “for profit” carriers and the unintended inclusion of individual amateurs pursuing their hobby as a permitted accessory use of residential property.)
• Before buying a property upon which you intend to erect towers or antennas, research the location. Know with certainty what town or municipality the property is located in, and obtain a written copy of the current zoning ordinance and any other relevant documents. Meet with an appropriate zoning official in person to confirm that the documents you have are the latest and represent the totality of public regulation pertaining to the property you have in mind. If the zoning ordinance is found only in electronic form online, make sure you download, print out, and safely archive the revision that is current as of the exact date you take legal possession of your new property. Depending on the specifics, if the town revises the zoning later on and makes it more restrictive, you may have recourse based on local law with respect to grandfathering provisions.
• Never depend on oral assurances from anyone that there is nothing prohibiting you from putting up a tower! Get it all in writing. Do not expect your real estate agent to be a zoning expert, building codes expert, or legal expert—or to do your highly specialized legwork for you. A good agent will do everything he/she can to understand your requirements and help you get in touch with people who are experts in the areas you need—but your real estate agent is primarily trained in the mechanics and psychology of helping property owners sell their property. (In fact, in most states, “your” real estate agent is actually a subagent of the seller unless you have made specific arrangements for your agent to act as a “buyer’s agent” or “dual agent”. Note: The author who wrote this section is a licensed real estate broker in one of these 50 United States and has served on his local planning board for the past seven years.)
• If you have located a specific property that seems appropriate for your intended radio uses but the zoning ordinance clearly requires a variance or special use permit for erecting a tower, make the issuance of that permit a contingency in your purchase offer and do not let anyone talk you out of it. Once you have a signed purchase contract, immediately set about to clear the contingency. This will most likely involve your appearing before the local planning board or zoning board of appeals (exact names of these bodies may vary from state to state) to make a brief presentation in support of your application. Assuming you are successful, before you agree to close on your new property be sure you have in your possession, in writing, all the relevant ordinances, rulings, meeting minutes, and permits to allow you to proceed with your tower(s) and antennas as soon as you become the new owner of the property. Even so, this is not an ideal situation, since you will undoubtedly need to return to the local board for any additional supports you may wish to erect at a later date.
• Finally, it is always better to erect your towers and antennas sooner rather than later. Zoning laws do change from time to time, and, depending on how they are worded, construction projects that have not yet been started may well not be protected by any supposed grandfathering provisions. To paraphrase an old adage, “A tower in the yard is worth two in your dreams.”
If, when all is said and done, your “dream property” is going to require you to appear in front of a town planning board or zoning board of appeals, or if you already have a tower and unhappy neighbors are complaining about you at monthly town board meetings, you need more help than this chapter can give you in these few pages. By far the dominant reference for zoning matters related to towers and antennas, both amateur and commercial, is authored by Fred Hopengarten, K1VR. Fred is both an active amateur radio operator and a highly skilled lawyer specializing in antenna zoning matters. The cost of either of his books (see the reading list at the end of this chapter) is de minimus compared to the costs of a lawsuit or relocation. You can do no better than to follow Fred’s recommendations at all stages of the process. In some circumstances, volunteer counsel provided through the good offices of the American Radio Relay League may be available to you and your own attorney—especially if your situation is likely to establish a legal precedent that will be useful in future litigation of antenna support cases.
Private Sector Restraints
In many parts of the United States it is becoming harder and harder to find “affordable” residential properties with enough land to put up a reasonable set of antennas for the high-frequency bands. In many of those same areas, an increasing percentage of homes for sale are located in planned developments or other clusters of homes having what are collectively called restrictive covenants or CC&Rs (codes, covenants, and restrictions). These covenants, by whatever name, differ from the zoning ordinances of the previous section in that they are rules established totally within the private sector.
NOTE If at all possible, avoid purchasing a home or a building lot that is burdened with restrictive covenants!
If you believe there is a reasonable supply of properties suitable for you in the area you are interested in, you should advise any real estate agents you are working with that under no circumstances are they to waste your time (and theirs) by attempting to show you homes in CC&R developments. Furthermore, proponents of CC&Rs will be quick to remind you that nobody is holding a gun to your head; your purchase of a home is a classic case of an arm’s-length contract freely entered into between “a willing buyer and a willing seller”.
On rare occasion, the bylaws for a homeowners’ association associated with a development may allow for petitioning the association for specific, individual permission to do something generally prohibited. Whether the association directors or the membership as a whole would ever approve your request constitutes a real gamble, and your success will be highly dependent on such specifics as the topography of the development as a whole and your unit specifically, the personalities of the individuals in a position to decide, and your ability as a newcomer to present your case in a collaborative way. In general, the odds of success are extremely low.
If all else fails, and economics or other compromises have led you to a towerless life in a development community, all is not lost. Chapter 15 (“Hidden and Limited-Space Antennas”) is written with you in mind!
Final Thoughts
Searching for a home is a complex process. Searching for a home that must also satisfy your antenna requirements is substantially harder. Ask the author—he knows! Here are a few suggestions for those readers who may be in the market for a new location:
• At the very beginning of your search, establish the minimum lot area and dimensions you are willing to tolerate at the new location. Think about what kinds of terrain are acceptable to you. (If your primary interest is VHF, UHF, and/or microwave frequencies, life in a valley is probably not going to be very satisfying.) Recognize also that your interests and requirements may broaden or change with time.
• Do as much of your early searching as possible via the Internet. Insist on obtaining specific street addresses for properties of interest. (Real estate agencies in some areas of the country are stingy with that information until you have registered with them. Further, in many states, vacant land has no numerical street address so it is extremely difficult to pinpoint the exact location of vacant land without the help of the listing agent.)
• Check the topography around each candidate property with the terrain feature (which often is active only for a limited range of mapping scales) or one of the Internet sites specializing in online topographic maps.
• Purchase topographic maps for the area(s) you are considering. Most of these charts explicitly show utility transmission lines; some online topo map sites do not.
• Establish a minimum distance from high-voltage power lines that you are willing to tolerate. (One mile is a reasonably “safe” starting point.)
• When you visit a property, check the electrical noise environment. If you have a mobile rig in your vehicle, great! If not, tune your AM radio to an empty frequency at the top end of the AM broadcast band (which is not far from the 160-m band). Also check into using the (AM) aircraft band of your handheld VHF receiver or transceiver.
• If you have determined where the nearest utility overhead high-voltage transmission lines are, drive toward them, listening to your AM radio as before. Get a sense of how noisy they are when you are right under them. (Keep in mind, however, that high-voltage transmission lines that are “quiet” today may be quite noisy tomorrow when a different piece of heavy machinery somewhere along the line fires up.)
• Use maps, Internet searches, and local residents to determine the location and runway lengths of the nearest airport(s).
• Visit the local zoning office and meet the folks there. Be collaborative, not confrontational. Determine whether the property you are interested in is in a historical or conservation overlay district; if so, your future with antennas may be fraught with disappointment. Confirm that the most up-to-date version of the local zoning ordinance is on the Internet; if not, buy a printed copy and register to receive notice of any future updates. Ask what the procedure is, if any, for obtaining a building permit to put up “residential antenna support structures” (not “towers”).
For Additional Reading
Antenna Zoning Book—Professional Edition: Cellular, TV, and Wireless Internet, Fred Hopengarten, www.antennazoning.com.
Antenna Zoning for the Radio Amateur, Fred Hopengarten, K1VR. www.antennazoning.com. (Also available from ARRL, Newington, CT 06111.)