Daily Development for
Monday, June 24, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

When I came across the little (and probably wrong) case reported first below, I decided to seize the opportunity to provoke the list to talk about recent issues concerning satellite dishes. Therefore, I reached back into some of the old volumes of Reports (they're still for sale, you know) and came up with earlier discussions of satellite dish issues.

I know that the Community Associations Institute has been doing some things with the FCC, as well as possibly in other arenas. Perhaps some other association folks or others are familiar with developments in this area.

Please report.

SERVITUDES; USE RESTRICTIONS; REMEDIES; STATUTE OF LIMITATIONS: Action to enforce subdivision restriction prohibiting use of satellite dishes is not subject to a two year statute of limitations on "size, height, cost or location" of buildings or other improvements because neighbor's demand that it be removed does not relate to dishes' "size, height, cost or location.". Northridge Association of St. Joseph, Inc. V. Welsh, No. Wd 51054 (June 11, 1996) (1996 Wl 309496 (Mo. App. W.D.)

Although the case does not give the language of the covenant at issue, surely it was breached only when a satellite dish was located in a visible fashion on a subdivision owner's property. For instance, there likely would have been no violation if the dish were dissassembled in a box in a garage. It is not a bomb - it is an eyesore. Consequently, the dispute necessarily had to do with the "location" of the dish, and it is astonishing that the court could conclude otherwise.

See, also, discussion of this case under the heading: "Words and Phrases; `Buildings.'"

WORDS AND PHRASES; "BUILDINGS:" A satellite dish is not a "building" within the meaning of a statute of limitations applying to actions for breach of a cofvenant "restricting use of land caused or resulting from the size, height, cost or location of buildings or other visible improvements . . . " Northridge Association of St. Joseph, Inc. V. Welsh, No. Wd 51054 (June 11, 1996) (1996 Wl 309496 (Mo. App. W.D.)

WORDS AND PHRASES; "VISIBLE IMPROVEMENTS." A satellite dish is not a "visible improvement" within the meaning of a statute of limitations applying to actions for breach of a cofvenant "restricting use of land caused or resulting from the size, height, cost or location of buildings or other visible improvements . . . " Northridge Association of St. Joseph, Inc. V. Welsh, No. Wd 51054 (June 11, 1996) (1996 Wl 309496 (Mo. App. W.D.) Comment: Although it is easy to be symphathetic with the court's hostility to a two year "short string" statute of limitations on covenants of this type, this would not justify a conclusion that a satellite dish is not a "visible improvement," as it is apparent that the gist of the complaint is that the dish, in fact, is visible and, of course, is an phyiscial installtion, or "improvement" to the offending owner's property.

SERVITUDES; RESTRICTIVE COVENANTS; STRUCTURAL CONTROLS: A satellite dish may fall within a restrictive covenant's ban prohibiting towers and antennas on residential lots. Iowa Realty Co., Inc. v. Jochims, 503 N.W. 2d 385 (Iowa 1993) The express prohibition of the provision included an allowance for "reasonable television or radio antennas" on dwellings or garages. The homeowners attached a six-foot (diameter) satellite dish embedded in concrete, to their dwelling by a series of metal brackets. While acknowledging the rule that restrictive covenants were to be strictly construed against parties seeking enforcement, the court felt it unnecessary to resort to the rule where, as here, the provision was free of ambiguity. Mere disagreement was not enough to establish ambiguity, nor was the failure of the covenant to specifically mention satellite dishes. Despite an implicit invitation by the district court to set a standard for what type of antenna was "reasonable", or attachment "acceptable," the court opted to hold these parties in violation of the statute summarily leaving identification of "reasonable" standards for a future case. Comment: For two recent cases evaluating the "reasonableness" of restrictions on antennas and satellite dishes, see Hotz v. Rich, 6 Cal. Rptr. 2d 219 (Cal. App. 1992) (ham aerial restriction may be "so unreasonable as to violate public policy"); Portola Hills Community Ass'n v. James, 5 Cal. Rptr. 2d 580 (Cal. App. 1992) (similar application to satellite dish restriction.) (Note that these California cases may not be strong authority after the recent Supreme Court opinion in Nahrstedt v. Lakeside Village Condominium Association, 33 Cal. Rptr. 2d 63 (Cal. 1994) (reversing Court of Appeals and holding that condo rules may prohibit pets in units - rules are presumed reasonable and one attacking them must show they are arbitrary, violate a fundamental public policy, or impose a burden far out of proportion to any benefit.).

COVENANTS: Restrictive covenant in housing subdivision prohibiting erection or placement of any "outside radio, television, Ham broadcasting, or other electronic antenna or aerial" applied to satellite dish erected by lot owner. Injunction granted requiring removal of dish. Breeling v. Hansen, 228 Neb. 596, 423 N.W.2d 469 (1988). Even though the Nebraska court had previously indicated that restrictive covenants were to be "strictly construed" as restraints on the use of property, the language of the subdivision covenant "clearly" indicated that satellite dishes were to be included within the prohibition.

ZONING AND LAND USE; FEDERAL PREEMPTION; SATELLITE DISHES: Federal court abstention under the Burford doctrine was improper in a case that asserted preemption by FCC regulations of a local zoning ordinance governing the size and placement of television antennas and satellite dishes. Neufeld v. City of Baltimore, 964 F.2d 347 (4th Cir. 1992). City ordered homeowner to remove his large satellite dish from his front yard pursuant to a local zoning ordinance. Homeowner asserted that FCC regulations preempted the field of satellite communications, and therefore the provisions of the locality's zoning ordinance pursuant to which he was ordered to remove the dish were unconstitutional. The district court abstained under the Burford doctrine (Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943)), and dismissed the case. In holding the district court's abstention improper, the Fourth Circuit indicated that Burford abstention may be used only in exceptional circumstances. Citing the Supreme Court's ruling in Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976), the Fourth Circuit stated that abstention is only appropriate (i) for cases that present difficult questions of state law involving important policy considerations affecting localities, and (ii) when the exercise of federal review would disrupt state efforts to establish coherent policies of substantial public concern. According to the court, this case presented no difficult state law questions. The court went on to note that while Burford abstention is often appropriate in land use cases involving "difficult interpretations of state law of peculiar concern to a particular locality," this case did not present such an issue because the federal court was faced with a federal preemption issue, and was not being asked to interpret the substantive provisions of the locality's zoning ordinance.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-5, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Laprica Mims at the ABA. (312) 988 6233.

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.