Old satellite dish restrictions under fire New laws urged for smaller models

October 10, 1993|By Andree Brooks | Andree Brooks,New York Times News Service

When satellite dish antennas first came on the market some 13 years ago they were large and ugly, like giant rice bowls sprouting in a greensward. So it was understandable that condominium and other homeowner associations tightly restricted their use.

But too often the unit owners didn't care. According to the Satellite Broadcasting and Communications Association, the trade association for satellite dish reception based in Alexandria, Va., about 364,000 residential satellite systems were installed in 1992, twice as many as the 130,000 systems installed in 1982.

Their attraction lay in the greater number of channels that could be reached for costs similar to most cable TV franchise services.

In the early '80s, many municipalities also saw fit to pass zoning ordinances restricting their use.

But the restrictions were struck down in 1986 when the Federal Communications Commission ruled them illegal. A municipality could require a property owner to relocate the dish if it violated other zoning restrictions, such as a setback requirement. But it could not outlaw their use.

But community-association restrictions were considered private regulations, and they survived most court challenges by unit owners.

Lately, however, things have been getting out of hand. Technology has progressed and those original restrictions are now out of tune with reality.

"Some of the new dishes are so small and so cleverly designed they look like rocks or patio umbrellas," said Stephen Bupp, president of Condominium Venture Inc., a Greenbelt, Md., management firm.

Others can be so well-concealed they cannot even be seen from outside the property, noted Ken Nelson, executive director of The Trails Homeowners Association, an association with 990 units in Ormond Beach, Fla.

And "when nobody else can see it," he has begun warning his elected officers, "it's going to be harder and harder to prove in court that anyone's done anything wrong." Thus, say specialists in community law, it's time to update the regulations.

This was also a recommendation at a workshop on the topic in April at the annual conference of the Community Associations Institute, the national network of people in the community ownership field.

R. Michael Nagle, a lawyer based in Columbia, Md., who specializes in community association law and was primary panelist at the Seattle session, warned that if outdated satellite dish regulations were not amended, suits by angry unit owners would rise sharply.

Dozens of associations could then find themselves caught up in costly and time-consuming litigation that could have been avoided, he said.

He cited a recent California Court of Appeals decision -- Portola Hills Community Association vs. James -- that could be deemed a warning for the future.

This decision, handed down in March 1992, determined that a covenant prohibiting the installation of a satellite dish became unreasonable and unenforceable once the dish was no longer visible from any other unit. So it now makes more sense, said Mr. Nagle, to try to resolve it in a less confrontational manner: Either the association bylaws could be amended to reflect more accurately the less intrusive impact of the newer type of satellite dishes, or it could bypass the quandary entirely by installing a master satellite dish to serve the entire community.

A third solution -- looking the other way and failing to enforce existing prohibitions -- is the least advisable. "The board could be sued for breach of its fiduciary duties," Mr. Nagle warned.

Gaining approval for the needed changes to an association's bylaws is never easy.

"Normally you need at least a two-thirds majority," noted George Nowack, a lawyer in Atlanta who is president-elect of the Community Associations Institute.

But Mr. Nagle insists there are ways to get around even this hurdle. His favored technique involves a three-part approach that begins with an educational meeting. Unit owners are given forms -- which differ from proxies, he said, in that they do not expire -- on which they are asked to approve or reject relaxation of satellite rules.

This, he said, is then followed by a "document amendment day" whereby volunteers go from door to door encouraging residents to sign and return their consent forms. The option remains open DTC until the required majority -- say two-thirds -- accepts or rejects the proposed amendment.

The satellite trade association is offering three different model amendments on which to base those revisions, each about a paragraph long and each slightly more restrictive than the former. One allows for the installation of a dish by right, provided it's screened or disguised. The two others require prior approval by an association's architectural control committee, which may be given the authority to decide each application on a case-by-case basis. For copies of the model provisions call the SBCA at (202) 549-6990.

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