WW8N tower court case could set a precedent for all US amateurs

This court case about a tower before a Federal court could affect the ability of amateurs everywhere to erect towers. READ THIS!

February Edition of the Ohio Section Journal
FROM THE STATE GOVERNMENT LIAISON..
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Village of Swanton Antenna Decision Appealed..

On February 4 the Village of Swanton filed a notice of appeal, appealing the decision of the Fulton County Common Pleas Court in the case of Wodtke v. Village of Swanton. The case is the first court case that we are aware of involving application of Ohio’s new antenna legislation, H.B. 158 (129th General Assembly). The Trial Court ordered the approval of an application to the village by Gary Wodtke, WW8N, for approval of an antenna variance. The Village denied the application and Mr. Wodtke appealed that decision to the Fulton County Common Pleas Court. The Court ruled in Mr. Wodtke’s favor and the Village is now appealing that order. In the docketing statement filed with the Court of Appeals the Village asserts four potential issues to be argued in the appeal, including whether Revised Code Section 5502.031, enacted by H.B. 158, is constitutional and whether it was constitutionally applied in this case.

Ohio law grants a right of appeal from final decisions of a common pleas court. The decision here is appealed to the Sixth District Court of Appeals, headquartered in Toledo. The appellate process involves first, filing the record of proceedings in the common pleas court, then briefs of each of the parties and, finally, a brief oral argument to the court. Appellate decisions are heard by a three judge panel that is usually designated near the time for oral argument. Decisions normally take a number of months after oral argument. Appellate decisions are generally final, unless further review is granted by the Ohio Supreme Court. While a court of appeals decision represents the law only in that appellate district, it carries significant precedential value in other Ohio courts and may also be cited in similar cases in other states.

Mr. Wodtke is represented by Toledo attorney Carey Cooper and by Fred Hopengarten, K1VR a noted authority on zoning and amateur radio antenna issues. ARRL leadership at the national level is also aware of the appeal. Scott Yonally, Ohio Section Manager and Jim Weaver, Great Lakes Division Director have enlisted support from the ARRL. In my discussion with League General Counsel, Chris Imlay, W3KD, it appears that the leadership of the League views this appeal as being one of precedential significance, not only for Ohio amateurs, but also for amateurs in other states that have passed state versions of FCC regulation PRB-1.

Discussions are ongoing regarding various ways to help bring this appeal to a successful conclusion. We will keep you informed as further developments occur.

73, Nick, K8NAP

State Government Liaison
goodsonrd@netwalk.com
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I hope the ham wins (again) on appeal.

 

Yes, but say he wins again. Would this have any meaning in a restricted subdivision where the covenant, deed or HOA clearly states no antennas? I doubt it.

 

Antennas and HOA, and deed restrictions

Why would anyone that enjoys the hobby of Amateur Radio move to one of these HOA or deed restricted subdivisions?

 

Lets say a resident of a HOA or CC&R area decides that Ham radio is neat, Does that person have to rent property or tower space off site?

 

There are many ways we (ARRL and amateur groups) can try to overcome covenants, deeds, and HOAs stating no antennas. Clearly ordinances governing these matters are difficult to pass and not the way to go.

 

This appeal in the Swanton case is NOT to a Federal Court - it is to the OHIO STATE Court of Appeals. If Swanton loses (which I hope they will) they can then appeal the case to the Ohio Supreme Court. The Village is questioning the constitutionality of this law under the OHIO Constitution, primarily on the grounds that it intrudes on the authority of local officials in land use.

Having lived in that area at one time, I'm betting that the Village is appealing (BTW, using TAXPAYER's MONEY to fund the appeal) hoping that Mr. Wodtke will run out of funds to fight them. This is a "wizzing contest" - the Village wants to prove they are more powerful than some mere citizen and will squander taxpayer money to prove the point. Their goal is not just to prevent Mr. Wodtke from putting up his antenna - they want the entire statute to be invalidated.

I worked with my State Representative to get this law enacted (which the Ohio League of Cities fought tooth and tong), and I intend to take to him about filing an amicus brief on Mr. Wodtke's behalf.

73,
Bill Bowen
K8WHB

 

I understand there are some HOA's that are so strict that they don't even allow things like raising the hood on your car, to do something simple like check the oil or add windshield washer fluid. Or jacking up a car, to say change a flat tire.

Worse than than that, many do not allow home chicken coupes, or bee hives. A real bummer if you like fresh eggs, honey and your garden crops pollinated.

 

I can agree with the homeowner to a point. I have lived in HOA (or whatever you call them before), but never again.
One should read the rules before moving in.... It's sort of like buying a retirement property at the beginning of an airport runway and then complaining about the noise !!! ???

Respectfully,
Steve.... KH6CT

 

Seems to be worse than Communism!

 

It's not about HOA or CC&Rs. It's about local law that targets antenna towers.
Codified PRB-1 prohibits such laws in most circumstances. Ohio has codified PRB-1 and some communities don't like it.
It's a case where the 600 pound gorilla tells the 400 pound gorilla where they can go.
I hope Gary wins this and yup, it's gonna cost a bunch.

Have fun
73
Gary

 

The only thing we can do with those HOA rules is to replace the whole rulings. That can be done if let say, if there are more hams that you know lives with you in the neighborhood and all of the hams becomes the HOA board members then that is the only time you can amend the rules to our favor.

My two cents in.
God Bless All of Us!

 

this is a very good question.

 

It's utterly amazing how many guys have gotten their buns in a severe uproar over this posting:

1. It has nothing to do with CCR's or HOA's.
2. It has to do with an Ohio municipality that has, for some reason, a dislike of ham antennas, and is upset that the State of Ohio codified PRB-1 in its own zoning laws. They are therefore appealing the STATE court decisions through the various STATE courts to get the lower court ruling allowing the antenna overturned. They are doing so on the basis of the Ohio state PRB-1 legislation being a violation of their local zoning rights according to the STATE constitution.
3. It has nothing to do with any Federal courts as of yet. As such, any final decision in Ohio courts will be binding on OHIO, and nowhere else.

Although this news is upsetting, it is not something that has not happened before in other states, and the attorneys involved have a very good record of defending these suits.

 

Because unless you buy undeveloped rural land or an older home that pre-dates mandatory HOA membership, it is near impossible anymore to buy a house that is not covered by a mandatory HOA.
As much as most of us would love to make HAM radio the top criteria / deal killer when buying a home, it isn't. (most of us are half the buying team, and our vote generally counts less than half )
And another fact of life is that many of us are not in a position for many rasions to move out to non-HOA rural areas, or willing to buy what are any more, inner-city pre-HOA homes. It's a compromise.