As a general rule, the First Amendment protects one’s right to receive ‘suitable access’ to meaningful television broadcasts (seriously!). City ordinances restricting height, screening, and setback of satellite dishes that are content neutral are a valid regulation for health, safety, and aesthetics and do not violate the First Amendment. Regulations issued under the Federal Communications Act preempt local regulation of satellite dishes, unless the ordinance has a clear health, safety, or aesthetic objective and does not impose unreasonable limitations on or prevent reception of satellite signals or impose unreasonable costs on the owner.
In the recent case of Zubarau v. City of Palmdale a homeowner challenged a City’s decision that restricted the height of a “ham” radio antenna.
The City of Palmdale directed a residential homeowner to remove a 55-foot tall “ham” radio antennae from the backyard of his residence after 68 of his neighbors complained that the antennae was not compatible with the neighborhood, a safety risk in high winds or in seismic activity, and interfered with the neighbors electronic equipment was supported by substantial evidence.
In directing Plaintiff to remove the antenna, the City relied on its ordinance that regulated the height of antennae in residential areas to 30 feet.
The court of appeal held that the City’s decision to order removal of the tower was supported by substantial evidence. The court further held that the ordinance was in compliance with state and federal laws in that the order did not constitute an undue interference with amateur radio communications permitted by state and federal law (note, the court did point out that the ordinance was unconstitutionally vague, but that did not affect its decision regarding removal of the antenna in question).
What this case shows us is that it is important for a homeowner to make sure they know all the local ordinances before constructing antenna or satellite dishes. Further, if you are a homeowner in an HOA or common interest development, make sure you read the CC&Rs, as many contain restrictions on the size of satellite dishes for television, among other restrictions.
If you are looking into constructing improvements on your home, including antennae, or are being pursued by the City for allegedly violating local ordinances, or if you have any other questions about real estate legal issues, contact Brewer Offord & Pedersen LLP at (650) 327-2900, or on the web at www.BrewerFirm.com.
