CRITICAL EXCEPTION
Sample Issue #1 of 3
Blanket ban, sub-1-meter size cap, or prior approval requirement on satellite dishes or antennas is preempted by federal FCC OTARD regulations.
Operative Clause · Sec. 51 (Page 3)
“limited to, a tree survey, aerial imagery collected from private or public sources, natural resources assessments, topographic maps, management plans, a map of conservation areas, land use maps. etc., to…”
Why It’s Flagged
47 C.F.R. § 1.4000 (FCC OTARD Rule)
- The FCC Over-the-Air Reception Devices rule (47 C.F.R. § 1.4000, as expanded by the 2021 OTARD Report and Order, FCC 21-10) preempts community association restrictions that prohibit, charge application fees for, require prior architectural approval for, or impose sub-1-meter (39.37-inch) diameter caps on the installation, maintenance, or use of television broadcast antennas, direct-broadcast satellite dishes 1 meter or less in diameter, and fixed wireless broadband antennas (including hub and relay antennas) situated on property within the exclusive use or control of the owner/tenant.
Sample Discussion Wording for HOA Counsel
For Board & Counsel Review
- 1A-lO.1O1. DEFINITIONS. In this article: AGE CLASS means a distinct group of trees originating from a single (1) natural event or regeneration activity (i.e., a 10-year age class), as used in inventory management. ANSI A300 means the American National Standard for Tree Care Operations, including all parts, as amended. APPROVED TREE LIST means the list of replacement and landscape f) trees approved by the director. ARTIFICIAL LOT means an area within the building site that is delineated by the building official or the director of park and recreation for the sole purpose of satisfying the requirements of this article (see Section 51 A- 10.122). 4) DCAI45-002(PE) (Article X) (Alternate) 30929 BOUNDARY TREE means: a tree growing on a property boundary line between two private lots resulting in joint ownership by the adjacent property owners when the trunk exists on each property.
- 2Or a tree that has 20 percent or more of its tree canopy cover extending over a property line into an adjacent building site. BROWNF]ELD means a building site, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant. (7[2]) CALIPER means the thickness of a tree trunk measured in inches.[: for a single stem tree, the diameter of the trunk measured 12 inches above the ground for a tree having a diameter up to and including eight inches, and measured at four and one half feet above the ground for a tree having a diameter of more than eight inches. fB for multi stem trees, the diameter of the trunk measured at the narrowest point below branching when branching occurs higher than 12 inches above the ground. When branching occurs at or lower than 12 inches above the ground, caliper means the diameter of the b’’ stem plus the- average diameter of the remaining stems, measured at four and one half feet above the ground.] ([3]) CANOPY TREE means a species of tree that normally bears crown foliage no lower than six feet above ground level upon maturity. CLASS 1 TREE means a tree located in a primary natural area or a geologically similar area within 50 feet above the escarpment zone. fjQ) CLASS 2 TREE means a tree that is not otherwise classified as a Class 1 tree or Class 3 tree. CLASS 3 TREE means Arizona ash, black willow, cottonwood, hackberry, honeylocust, mesquite, mimosa, mulberry, ornamentals, pinus spp.. Siberian elm, silver maple, sugarberry, or a small tree. UJJ (12[4]) CLEARING means any activity that removes or seriously injures one or more trees or the vegetative ground cover of one or more trees, such as root mat removal or topsoil removal. j) COVERED SOTh AREA means an area of soil that is under nonpermeable pavement and is designed to accommodate tree root growth. DCAI45-002(PE) (Article X) (Alternate) 30929 18097? (l4[]) CRiTICAL ROOT ZONE means the circular area of ground surrounding a a distance of one foot per diameter [caliper] inch of the tree, measured from the extending tree tree trunk or stem. LL) DEVELOPMENT IMPACT AREA means the area of land or vegetation alteration within a property including, but not limited to, clearing, grading, excavating, filling, and any construction site operations, paving, or any other installation. DIAMETER means the thickness of a tree trunk. fl DRIP LINE means a vertical line that runs from the outermost point of the crown of a tree to the ground. (1[é]) ENHANCED PAVEMENT means any permeable or nonpermeable decorative pavement material intended for pedestrian or vehicular use approved by the director. Examples of enhanced pavement include, but are not limited to, brick or stone payers, grass paver, exposed aggregate concrete, and stamped and stained concrete. (19[7) EVERGREEN TREE OR SHRUB means a tree or shrub of a species that normally retains its leaves throughout the year. ) FACADE PLANTING AREA means the portion of a lot abutting a storefront, office, or mixed use building facade. (i[]) FLOOD PLAIN means any land area susceptible to inundation by the hundred-year frequency flood. FOREST STAND DELINEATION (“FSD”) means a comprehensive (22) assessment of the conditions of a property using multiple types of information, including, but not limited to, a tree survey, aerial imagery collected from private or public sources, natural resources assessments, topographic maps, management plans, a map of conservation areas, land use maps. etc., to provide the required data to determine tree replacement requirements and forest conservation objectives. ([9}) GRADING means any digging, scooping, removing, depositing or stockpiling, of earth materials. GREEN INFRASTRUCTURE means the ecological framework of trees used in conjunction with engineered systems for the effective and resilient and vegetation processes of stormwater management, climate adaptation, urban heat abatement. biodiversity, improved air quality, clean water, and healthy soils, for sustainable social, health, and economic benefits of the urban community. (25[-10])GROUND COVER means natural mulch, or plants of species that normally reach a height of less than three feet upon maturity, installed in such a manner so as to form a continuous cover over the ground. DCA145-002(PE) (Article X) (Alternate) 30929 J HABITAT PRESERVATION AND RESTORATION AREA means a designated area on a landscape plan dedicated to the restoration and preservation of an undeveloped site through active or passive management practices. HISTORIC TREE means a tree, or grove of trees, that has been recognized by resolution of the city council as having cultural or historical significance. ) ([44])HUNDRED-YEAR FREQUENCY FLOOD means the flood having a one percent chance of being equalled or exceeded in any given year. This flood is based upon the drainage area being fully developed to current zoning limitations. INTERIOR ZONE means the area of a lot not included in a street buffer zone or a residential buffer zone. INVASIVE PLANT means a plant that has been classified as invasive to Texas Parks and Wildlife or the Texas Department of Agriculture. the Dallas region by (31[14])LANDSCAPE ARCHITECT means a person licensed to use the title of “landscape architect” in the State of Texas in accordance with state law. (32[4-])LANDSCAPE AREA means an open soil area covered by natural grass, ground cover, stone aggregate or river rock, or other plant materials for the purpose of landscaping or the growth and establishment of trees and other vegetation [at least 80 percent of which is covered by natural grass, ground cover, or other natural plant materials (excluding screening)]. ({44])LANDSCAPE BUFFER STRIP means a landscape area that serves a buffer function. (34[44])LARGE SHRUB means a shrub that normally reaches a height of six feet or more upon maturity. (35[-l-6])LARGE TREE means a tree [ef-a] species that typically attains [normally reaches] a height and canopy width of at least 50 [M] feet [or more upon] maturity, or as classified by the director. LEGACY TREE means a large or medium tree planted in a landscape area in accordance with Section 51A-10.104 and Section 51A-10.135. ç) (32[4-71)LOT means: (A) a “lot” as defined in Section 51A-2.102.
- 3(B) an “artificial lot” as defined in this section. DCA145-002(PE) (Article X) (Alternate) 30929 (38[4-g])LOT WiTH RESIDENTIAL ADJACENCY means any of the following: (A) A building site containing a multifamily use that is adjacent to or directly across: (i) a street 64 feet or less in width.
- 4Or (ii) an alley.
- 5From private property in a single family, duplex, townhouse, [e+1 CH, or RTN district ora residential planned development district. (B) A building site containing a nonresidential use that is adjacent to or directly across: (i) a street 64 feet or less in width.
- 6Or (ii) an alley.
- 7From private property in an agricultural, single family, duplex, townhouse, CH, multifamily, [ef] manufactured housing, or RTN district, or a residential planned development district. (C) An artificial lot containing a multifamily use if the lot is less than 200 feet from private property in a single family, duplex, townhouse, [ei] CH [zoning district]: or RTN district, or a residential planned development district. An artificial lot containing a nonresidential use if the lot is less (D) than 200 feet from private property in an agricultural, single family, duplex, townhouse, CH, multifamily, [ef] manufactured housing, or RTN [zoning] district, or a residential planned development district. MEDIUM TREE means a tree that typically attains a canopy height of at least 30 feet and a width between 15 feet and 50 feet in width at maturity, or as otherwise classified by the director. (40[-l-9])NONPERMEABLE COVERAGE means coverage with any pavement that is not ‘permeable pavement” as defined in this section. 4fl NURSERY STOCK means a plant grown in or obtained from a nursery. OPEN SOIL AREA means an unpaved area of soil. DCA145-002(PE) (Article X) (Alternate) 30929 PEDESTRIAN PATHWAY means an area intended for use by pedestrians or non-motorized vehicles that is physically or visually distinguishable from parking and driving surfaces by concrete curbs, wheel stops, or other permanent barriers, landscape barriers, or a change in surface materials such as payers, patterned concrete, or flagstones. (44[20])PERMEABLE PAVEMENT means director approved paving systems, payers, or other structural surfaces that allow stormwater infiltration [a paving material that permits water penetration to a soil depth of 18 inches or more. Permeable pavement may consist of nonporous surface materials poured or laid in sections not exceeding one square foot in area and collectively comprising less than two thirds of the total surface area]. PREVIOUSLY DEVELOPED SITE means a building site that has been substantially altered through paving, construction, or other activity that requires or required permitting or licensing through a regulatory agency. PRIMARY NATURAL AREA means an ecologically sensitive area including 100-year flood plain and riparian areas, wetlands or 50-foot wetland buffer, perennial and intermittent streams measured to 50 feet above top of bank, and the escarpment zone. (47[2-i])PRIVATE PROPERTY means any property not dedicated to public use, except that ‘private property” does not include the following: (A) A private street or alley. (B) Property on which a utility and public service use listed in Section 51A-4.212 is being conducted as a main use. (C) A railroad right-of-way. (D) A cemetery or mausoleum. (48[22])PROTECTED TREE means: (A) a tree of any species that has a minimum diameter of eight inches that is not classified as unprotected in this article: .(] any tree in a stand which projects a tree canopy over a building site when identified within a forest stand delineation review: or [that has a caliper of eight inches or more dilu is ilul one following trees: Acer saccharinum (Silver Maple). i4 Ailanthus altissima (Tree of Heaven). DCAI45-002(PE) (Article X) (Alternate) 30929 4iii Albizzia julibri fi Celtis occidentalis/lacuigata (Hackberry or Sugarberry). (Mimosa or Silktree). Fraxinus vclutina (Arizona Ash). Junipcrus virginiana (Eastern Red Cedar) [unless protected IF) \ 1 \. )J. (‘ii) Maclura (viii) Mclia azcdarach (Chinaberry). poinfcra [female only] (Bois d’Arc or Horseapple). Prosopis glandulosa (Mesquite) [unless protected under subparagraph (B).] Salix nigra (Black Willow) glandulosa) tree that has f*i.) Sabium scbzfcrum (Chinese Tallow). f*ii Ulmus pumila (Siberian Elm). an Eastern Red Cedar (Junipc Jiper of eight inches or more ,S.-.,-1 virginia) or Mesquite (Prosopis 120 feet of the boundary of: a floodplain [as A1_ r T1. — L’ A-.-1 ‘..71. ii within 50 feet of a natural 1 setback line [as defined in Article V]. an Eastern Red Cedar (Juniperus virginiana) or M (Prosopis glandulosa) tree that has a caliper of at least 12 inches.
- 8Or] (C[D]) a tree that was planted as a replacement tree. DCAI45-002(PE) (Article X) (Alternate) 30929 180977, (4[23])REMOVE OR SERIOUSLY INJURE means an intentional or negligent action that will more likely than not cause a tree to decline and die within five years of the act. Actions that constitute removing or seriously injuring a tree include, but are not limited to: cutting down a tree.
- 9Excessively pruning or topping a tree.
- 10Compacting the soil above the root system of a tree.
- 11Changing the natural grade above the root system of a tree.
- 12Damaging the root system or the trunk of a tree.
- 13Failing to repair an injury to a tree from fire or other causes, which results in or permits tree infections or pest infestations into or on the tree.
- 14Applying herbicidal or other lethal chemicals.
- 15Placing nonpermeable pavement over the root system of a tree. (50[24])RESPONSIBLE PARTY means the property owner and any other person or entity responsible for removing or seriously injuring a protected tree. (51[25J)REPLACEMENT TREE means a tree that is planted in accordance with [FEDERAL OTARD CARVEOUT]: Provided that this restriction shall not prohibit or require prior approval for any owner or occupant installing an antenna, fixed wireless broadband hub/relay device, or satellite dish of one meter (39.37 inches) or less in diameter within areas under the owner's or occupant's exclusive use or control, in accordance with FCC OTARD regulations (47 C.F.R. § 1.4000).