Emerald Estates Community Ass'n v. Gorodetzer

819 So. 2d 190, 2002 WL 985442
CourtDistrict Court of Appeal of Florida
DecidedMay 15, 2002
Docket4D01-2258, 4D01-3484
StatusPublished
Cited by5 cases

This text of 819 So. 2d 190 (Emerald Estates Community Ass'n v. Gorodetzer) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Emerald Estates Community Ass'n v. Gorodetzer, 819 So. 2d 190, 2002 WL 985442 (Fla. Ct. App. 2002).

Opinion

819 So.2d 190 (2002)

EMERALD ESTATES COMMUNITY ASSOCIATION, INC., a Florida not-for-profit corporation, Appellant,
v.
Barry GORODETZER and Kathy Gorodetzer, his wife, Appellees.

Nos. 4D01-2258, 4D01-3484.

District Court of Appeal of Florida, Fourth District.

May 15, 2002.
Rehearing Denied June 18, 2002.

*191 Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, for appellant.

Michael Schiffrin & Associates, P.A., and James C. Blecke of Deutsch & Blumberg, P.A., Miami, for appellees.

POLEN, C.J.

Emerald Estates Community Association, Inc. timely appeals the trial court's entry of final judgment in favor of Plaintiff/Appellees Barry and Kathy Gorodetzer on the Gorodetzer's declaratory action. We reverse and remand for further proceedings consistent with this opinion.

The Gorodetzers purchased their home in Emerald Estates directly from the developer in September of 1995. The Gorodetzers proceeded to erect four ham radio antennas in their backyard sometime before June 1996. The antennae ranged in height from thirteen to twenty-three feet; the tallest antenna extended approximately two and one-half feet above the roofline of their house.

The community of Emerald Estates was governed by a Declaration of Restrictions and Covenants. The Declaration was in effect at the time the Gorodetzers purchased their home; the homeowners' Association was controlled by the developer at that time. The Declaration provided for the creation of an Architectural Control Committee ("ACC"), a permanent committee of the homeowners' Association, whose function was to administer and perform the architectural and landscape review and control functions relating to the community. Per the Declaration, as Restated in 1998, homeowners were required to obtain approval of the ACC prior to erecting any antenna: "Unless otherwise permitted by law, no antenna ... of any type shall be placed upon a home or with a lot unless approved by the [ACC]."[1] Community Standards subsequently adopted by the Association further defined the functions of the ACC. The pertinent provision regarding the installation of antennae provided, "All outside antennas, antenna poles, antenna masts, electronic devices, satellite dish antenna, or antenna towers are subject to prior approval of the [ACC]. The [ACC] may require that all such items be screened from view and that the installation of the antenna comply with all applicable safety restrictions."

The Declaration evinced an intent to create a general plan and scheme of development of high quality within Emerald Estates; as such, the ACC was empowered to approve or disapprove all architectural, landscaping and location of any proposed improvements within the community, in order to maintain harmony of exterior design and conformity among surrounding structures and topography. *192 Furthermore, the ACC's approval process was outlined as follows: "No material improvements... which [are] visible from the exterior of a Home shall be constructed, erected, removed, planted, or maintained... until the plans and specification showing the nature, kind, shape, height, materials, floor plans, color scheme and the location of the same shall have been submitted to and approved in writing by the ACC." (Emphasis added.)

April 21, 1998, control of the homeowners' Association was turned over from the developer to the homeowners. Shortly thereafter, the homeowner-controlled Association sent the Gorodetzers a letter notifying them that their antennae were interfering with T.V. reception in the community, and more importantly, had been installed without architectural approval. The letter requested the immediate removal of the antennae. This initial request was not responded to, which caused the Association to send the Gorodetzers two follow-up letters. The third letter threatened a daily fine of $25 if the antennae were not removed within a weeks time. The antennae were removed. The Gorodetzers notified the Association of their desire to "appeal" the Board's decision. The Board responded with an invitation for the Gorodetzers to file a formal application regarding their plans to (re)install their radio antennae. The Board's letter requested the Gorodetzers supply certain details such as the placement, location, size, and permanence of the proposed antennas. The Gorodetzers filed an application; the Board responded by sending a temporary denial letter, which posited a few additional questions regarding the antennae (e.g., could they be taken down when not in use? what "bands" did they transmit on?), and requested Mr. Gorodetzer's presence at the Board's June 17, 2001 meeting. Mr. Gorodetzer, accompanied by his attorney, attended the Board meeting. Mr. Gorodetzer was told he would be informed of the Board's decision in the near future. A few weeks later he received a letter from the Board denying his application. The Gorodetzers subsequently filed a declaratory action in circuit court, accusing the Association of unreasonably rejecting their application to reerect their four antennas, and requesting the court to enter judgment declaring their right to erect ham radio antennas on their property.

The case proceeded to a bench trial held April 19, 2000. Mr. Gorodetzer readily admitted he had never filed a formal written application prior to originally erecting the antennae in September of 1995. However, he stated he had asked the developer's salesperson if erecting ham radio antennas would be okay to which the salesperson responded it would "not be a problem." Representatives of the Board reiterated that Mr. Gorodetzer had never filed a proper application any time prior to the Board's 1999 invitation to do such. The Association also introduced the expert testimony of electric engineer Roger Boyell. Boyell had been retained by the Association in the course of litigation in February 2001. His tasks were to provide an opinion regarding possible interference concerns and to propose aesthetic alternatives to the permanent vertical antennae proposed which the Gorodetzers sought to erect. Boyell drafted a proposal which was introduced at trial as joint exhibit # 39. Boyell's proposal called for one or two thin suspended wire antenna which would extend from the roof of the house to the Gorodetzer's back fence. Because these wires were thin, they would require no mounting structure and would be "imperceptible." Both Mr. Gorodetzer and representatives of the Board testified Boyell's proposal was an acceptable compromise.

*193 The lower court entered final judgment in favor of the Gorodetzers on two independent theories: (1) that the Association did not act reasonably in rejecting the Gorodetzers' 1999 application, and (2) that the originally erected antennas were "grandfathered" when control of the Association was turned over to the homeowners. As such, the Gorodetzers were entitled to erect either the "grandfathered" vertical antennas or the suspension antennae recommended by Boyell. We find the lower court's reasoning and decision erroneous in a number of regards, and accordingly reverse.

Reviewing the final judgment entered below, we find error in the lower court's construction of the controlling documents, i.e., the Declaration and the Community Standards. In paragraph (C) of the final judgment the lower court held,

[T]he Declaration and the Standards do not proscribe the ability and right of a home owner such as Plaintiffs to have antennas, instead they permit the use of antennas as long as approval is obtained from the [ACC].

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Bluebook (online)
819 So. 2d 190, 2002 WL 985442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emerald-estates-community-assn-v-gorodetzer-fladistctapp-2002.