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Ferolito v. Park Hill Association, Inc.

A-2742-05T1 (N.J. Super. App. Div. 2007) (Unpublished)

CONDOMINIUMS; ANTENNAS — Where a tenant’s proposal to install an antenna for the benefit of an entire condominium project would have a material effect on the condominium’s buildings, a board does not act unreasonably if it insists on investigating the degree of interest among unit owners toward availing themselves of the service the antenna would provide and it is not a violation of federal regulations to deny approval because putting antennas on common areas of a community association requires the consent of the association.

A condominium project consisted of eleven separate apartment buildings. The unit owner of one apartment sued the association and its management company, alleging that the association “arbitrarily withheld approval of its proposal to install a satellite dish system and violated his rights under the Association’s bylaws” and under the regulations promulgated by the Federal Communications Commission. The unit was occupied by the owner’s mother-in-law. She spoke Russian and was “interested in receiving television and radio programs that are broadcast in that language.” Russian programs were not available “through the cable service accessible to residents of [the Condominium] but [were] offered by several providers of satellite service.” Other residents of the condominium were also interested in foreign language programs. The unit owner “circulated a petition requesting the association to permit installation of satellite dishes and obtained forty-six signatures,” representing almost one-third of the condominium’s units. Following discussions with the association’s board, and at the request of the board, the complaining unit owner located a company that provided both international and domestic programs. “Because the cost of installation would vary with the number of users, [the complaining unit owner] was unable to state the cost.” The company offered to install the satellite dishes at no cost if there would be “about” one hundred subscribers. The association conducted two surveys and “the highest number of residents expressing interest was twenty-seven. The lowest number of negative responses was thirty-three. There were no other responses.” At the association’s annual meeting, “the board voted to take no action,” explaining that the interest was too low and there were no funds in the annual budget for installation. A few months later, the complaining unit owner submitted a proposal from a different company and offered to pay the installation fee himself. After some back and forth, the complaining unit owner delivered another proposal but, in the end, all the board decided to do was “to take another survey to assess the interest of the residents.”

The association’s “master deed permits the association to ‘construct new improvements or additions to the [c]ommon [e]lements,’” It prohibited the association from altering or damaging any unit without the consent of its owner. “No owner [could] make any structural change or place any antenna of any sort ‘until the plans and specifications, showing the nature, kind, shape, height, materials and location’ [had] been approved by the board.” The lower court ruled against the unit owner.

On appeal, the Appellate Division found no evidence in the record that would permit a reasonable juror to find that the association’s board “acted arbitrarily, unreasonably, in bad faith or out of self-interest by requiring and reviewing information before approving this project. ... The plans given to the board were far from detailed and the cost was not clear.” According to the Court, this was not a small project nor would it have had only a “minimal impact on the common elements.” The Court noted that the project would involve all eleven buildings and would require the running of lines “from the roofs of the buildings to the attics, which [had] obvious potential for continual impact on the common elements and the board’s responsibility to maintain them.” Consequently, the Court believed that “nder these circumstances, the board’s interest in the views of the members of the association and insistence upon detailed proposals was wholly consistent with the exercise of reasonable caution in the competent discharge of its responsibility to the members of the association as a whole.” Further, the complaining unit owner’s reliance on the Federal Communication Commission’s regulation was found to be without merit because the cited regulation did “not apply beyond the ‘property within the exclusive use or control’ of a person who seeks approval necessary to receive satellite service.”

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