From: whs70@dancer.uucp (22501-sohl)
Subject: Re: CC&Rs - how binding are they?
Reply-To: whs70@dancer.UUCP ()
Organization: Bellcore, Livingston, NJ
Date: Fri, 14 Aug 92 11:50:23 GMT

In article <1992Aug13.212741.5344@ke4zv.uucp> gary@ke4zv.UUCP (Gary Coffman) writes:
>In article <1992Aug11.151234.11917@porthos.cc.bellcore.com> whs70@dancer.UUCP () writes:
>>In article <BssoJ9.9n@cup.hp.com> dhepner@cup.hp.com (Dan Hepner) writes:
>>
>>>I'm with you, Tom.  I wouldn't buy.  However, there is a need to
>>>allow people to live in a neighborhood which excludes certain
>>>activities.  What we usually see are laws which mandate e.g. "no
>>>farm animals allowed" in an area which has been converted from
>>>farms to housing, but has three small farms left.  These laws are 
>>>imposed, involuntarily and with the threat of jail, upon people who 
>>>never were offered the decision not to buy.
>>
>>Depending on the specifics of a new law/restriction, there are
>>exceptions that can NOT simply be changed or eliminated because
>>of the new law.  The "farm animal" example tends to be a
>>"grandfathered" condition as is almost any other non-conforming
>>use that was there before a new law/zone restriction was enacted.
>>I have never (strong word I know) heard of a farm that
>>was "forced out of operation" because they could no longer have
>>farm animals due to a new zoning law.  Likewise, if you had
>>an antenna up that was 100 feet high, you couldn't be forced
>>to remove it if a new building code placed a limit on antenna 
>>heights of say 50 feet.
>
>Unfortunately there is first hand evidence that you are wrong.
>I know of a hog farm, in operation for 40 years, that was forced
>to close because a subdivision was built next to it. It had suddenly
>become a "non-conforming use" and was closed as a public nuisance.
>Now the developer knew the farm was there when he developed the
>subdivision, and the new homeowners knew that they were moving
>in next to a hog farm, but that didn't stop them from using the
>law to close it down.

I don't know what jurisdiction (state/county) this may have been in,
but that couldn't have been in NJ.  Are you sure they forced the "hog farm"
to cease operations ONLY on the basis of the farm not conforming
to the rezoned uses...or was the major thrust of the effort to
close down the farm based on other "health violations," etc.

>In a similar vein, people who move in next to airports and then
>bring public pressure to bear to close the airport as a nuisance
>often succeed. In both cases, a previously conforming use was
>stopped from continuing to operate by people who should have
>known what they were moving into.

But even in this case, you do not seem to be saying that the
"airport" was rezoned AND then because of the rezoning it was shut down.

>More directly related to ham radio, I've had legal complaints filed
>against my antenna because it's non-conforming and a public nuisance.
>I've had to show that it is grandfathered *and* not a public nuisance.
>The fact that it was grandfathered was not a sufficient defense. That
>even though neighbors knew the antenna was there *before* they built
>their house. Public nuisance suit defenses aren't easy or cheap.

Was the "suit" a civil case?  If so, why?  A violation of a zoning
use would be a municipality charge against you.  Why would it take
any more than a discussion with the town planner to verify the
"grandfathered" status of your antenna?  If the town planner was
in agreement that your antenna was "grandfathered" then why didn't you
have the case dropped?  If the neighbor was the complainent, why didn't
you have a statement from the planner as part of your defense (assuming
this went to the local court)?   By what basis did you
have to defend your antenna as NOT being a public nuisance?
More in line, on what basis did the city or your neighbor base
a claim that the antenna was a public nuisance?  I agree that
any time you hire an attorney it'll cost $$$, but if the township planner
was on your side, I don't see why you even ended up in court.

>In another instance, I was visited by the police because a complaint
>was filed about the storage of a number of microwave dishes on an
>open rack in the backyard. They claimed I was in violation of a new
>solid waste ordinance in a residentially zoned area. Now I'd stored
>dishes in that way for 20 years, but suddenly it wasn't legal.

You are (IMHO) confusing zoning with other types of ordinances (eg.
property maintenance codes, etc.)  I'm also into antique cars and have
helped several folks get around new laws that make it illegal to
have an unregistered car in the driveway, etc.  Those laws, however,
are usually not zoning laws, and an automobile (or uninstalled satellite
dishes) are not structures that are permanently installed.  They,
therefore, are much more controllable by new ordinances than "pre-existing"
structures.

>I had a long talk with my attorney, the county planning and zoning
>department, and the police. Then I built an "auxillary structure",
>two stories and 2300 square feet, the minimum 5 feet from my property
>line ajoining the troublesome neighbor. Now his "view" is not obstructed
>by non-conforming uses. In fact all he can see out his windows is
>my shop. Now I make it a point to do a lot of heavy grinding and
>hammering in the shop right up to midnight when the noise control
>ordinance requires me to stop. :-) :-)

Now maybe I shouldn't even say this because perhaps this one
neighbor is just a complete idiot (I do acknowledge that such people
exist), but maybe part of the problem is your continuing to do
everything possible to annoy the neighbor because of his/her prior 
efforts against your antenna.  Sure doesn't seem to be a good way to
create a good impression of ham radio operators in your neighborhood.
Just my opinion...

Standard Disclaimer- Any opinions, etc. are mine and NOT my employer's.
------------------------------------------------------------------------
Bill Sohl (K2UNK) BELLCORE (Bell Communications Research, Inc.)
Morristown, NJ             email via UUCP      bcr!dancer!whs70
201-829-2879 Weekdays      email via Internet  whs70@dancer.cc.bellcore.com
Newsgroups: rec.radio.amateur.policy