Gather round Fellow Geeks/Geekettes: Here some legal stuff to ponder about amateur ham radio laws in Florida and the input of the FCC! Recall that Bb St aib has always insisted to SLohA that they were helpless to do anything about his towers due to the supreme protection of the FCC. Bb St aib is a currently-licensed ham radio operator. However, it is obvious that this is a secondary use of the equipment on his parcel, and not at all relevant to the other 4 towers erected on SLohA common property.
Florida has at least two statutes relative to the "right" of ham radio operators to erect antennas:
125.561 Amateur radio antennas; construction in conformance with federal requirements.—
(1) No
county sH all enact or enforce any ordinance or regulation which fails to conform to the limited preemption entitled “Amateur Radio Preemption, 101 FCC 2d 952 (1985)” as issued by the Federal Communications Commission. Any ordinance or regulation adopted by a county with respect to amateur radio antennas sH all conform to the above-cited limited preemption, which states that local regulations which involve placement, screening, or height of antennas based on health, safety, or aesthetic considerations must be crafted to reasonably accommodate amateur communications, and to represent the minimum practicable regulation to accomplish the local authority’s legitimate purpose.
(2) Nothing in this section sH all affect any applicable provisions of chapter 333.
History.—s. 1, ch. 91-28.
Note.—Former s. 125.0185.
This is the statute (125.561) that Bb St aib referenced to the Polk County in defense of his activity on our property (and his own) and the County said "Talk to our attorney about that".
166.0435 Amateur radio antennas; construction in conformance with federal requirements.—
(1) No
municipality sH all enact or enforce any ordinance or regulation which fails to conform to the limited preemption entitled “Amateur Radio Preemption, 101 FCC 2d 952 (1985)” as issued by the Federal Communications Commission. Any ordinance or regulation adopted by a municipality with respect to amateur radio antennas sH all conform to the above cited limited preemption, which states that local regulations which involve placement, screening, or height of antennas based on health, safety, or aesthetic considerations must be crafted to reasonably accommodate amateur communications, and to represent the minimum practicable regulation to accomplish the local authority’s legitimate purpose.
(2) Nothing in this section sH all effect any applicable provisions of chapter 333.
History.—s. 2, ch. 91-28.
Basically, these statutes are a re-statement of the superiority of Federal law over State law and the only difference between these two statutes is the reference to "county or municipality". The FCC wants to give latitude to amateur ham radio operations and wants states and municipalities to not interfere "too much" i.e. "be reasonable". The reference to Chapter 333 is for air traffic and all bets are off when it comes to towers, transmissions and air traffic.
HOWEVER...What If You Are Faced With Restrictive RFI Covenants?
Amateurs are faced with two entirely different antenna restrictions. Town and city zoning problems are enforced by that local government and they apply to all its citizens. PRB-1 is helpful in educating local government authorities.
Covenant and deed restrictions are entered into voluntarily and they are often extremely restrictive. PRB-1 does not apply in such cases. Covenants can regulate what color a homeowners association member may paint his or her house and include many other possible restrictions, including restrictions on antennas and RFI.
The FCC discussed covenants in PRB-1, and it concluded by saying
"Purchasers or lessees are free to choose whether they wish to reside where such restrictions on amateur antennas are in effect, or settle elsewhere." The courts are generally reluctant to interfere with freedom of contract, such private agreements are usually legally upheld.In situations where the covenant is deemed to "run with the land," the restrictive language does not even need to be in the current contractual agreement if it was included at the time the property was first conveyed. This is the reason land records are checked to see if there are any type of restrictions from years past each time property is bought or sold. (The above was copy/pasted from
www.arrl.org/state-statutes )
The situation here is S-bag is interesting to say the least. The Covenants expired on all the common property in 2007 so there is no covenant restriction on many lots in S-bag--- BUT, there are lots still encumbered (my estimate around 100) with restrictions and that includes the covenant against a commercial business on individual and common property. There is also the plat zoning right attached to all deeds that is a contract with Polk County which represents approval of residential use only to the subdivision. This is why Polk County is pursuing building and zoning violations on behalf of their own land planning. Speculation beyond this is above my pay grade and for the lawyers to sort out, but it's something to think about.
