January 22, 2008
RIGHT TO DRY LEGISLATION IN NEW ENGLAND AND OTHER STATES
By: Julia Thomson-Philbrook, Legislative Analyst
You asked for information about 'right to dry' legislation in other states. This type of legislation forbids municipalities, neighborhoods, condominium associations, and others from passing laws or regulations that limit outdoor clotheslines. You also asked if the Federal Communications Commission's (FCC's) regulations regarding satellite dishes in condominium complexes could be construed to allow a right to dry.
Florida is the only state to guarantee a right to dry, although Utah and Hawaii have passed solar rights legislation. In 1999, Vermont became the first state to introduce a right to dry bill, although it did not become law. As of January 15, 2008, Vermont and New Hampshire were the only states in New England considering right to dry bills in their 2008 legislative sessions. The FCC's regulations regarding satellite dishes, and the federal statute regarding flag mounting, do not explicitly create a right to dry in condominium associations.
RIGHT TO DRY LEGISLATION
Florida (FSA § 163.04) expressly states that no governing body may adopt ordinances that prohibit the installation of clotheslines. Further, “no deed restrictions, covenants, or similar binding agreements running with the land shall prohibit or have the effect of prohibiting” clotheslines. Florida law therefore effectively bars municipalities, neighborhoods, condominium associations, and other community organizations from restricting the right to dry.
Utah's Code, § 10-9a-610, does not explicitly create a right to dry, but does permit municipalities to deny approval or renewal of any map, plan, dedications, or other grounds, if binding agreements prohibit, or have the effect of prohibiting, solar collectors, clotheslines, or other renewable energy devices, on those grounds. The statute therefore allows municipalities to choose whether to create a right to dry.
Hawaii (HRS § 196-7) allows for some reasonable restrictions on solar energy devices, but does not prohibit them on privately owned single-family residential units or townhouse units. Although the statute does not explicitly mention clotheslines, solar energy devices are defined as “any identifiable facility, equipment, apparatus, or the like, [that] makes use of solar energy for heating, cooling, or reducing the use of other types of energy dependent on fossil fuel for generation”. According to Representative Morita, Chair of Hawaiian Energy and Environmental Protection Committee, the law was not intended to cover clotheslines. However, advocacy groups such as Project Laundry List argue that the statute clearly creates a right to dry.
RIGHT TO DRY IN NEW ENGLAND
As of January 15, 2008, two states were considering right to dry bills: Vermont and New Hampshire. In Vermont, several bills touch on the right to dry issues. The bills are under review in the Senate Natural Resources and Energy Committee. SB 74 protects the right to 'voluntarily conserve', including the right to dry. SB 302 uses the language of the Florida statute to create a clear right to dry. According to Senator D. McCormack, who is a sponsor of these two bills, neither will likely pass. However, SB 209, currently under review in the House Natural Resources Committee and passed by the Senate last year, includes plans for a study of the impediments to voluntary energy conservation.
In New Hampshire, HB 1523 is currently under legislative consideration. Like Florida's law, the legislation expressly bars municipalities, neighborhoods, condominium associations, and others from prohibiting clotheslines. However, the legislation also includes the caveat that, “this section shall not limit the reasonable regulation of times for drying or the location of clotheslines and/or drying racks [to] protect aesthetic values”. According to Alexander Lee, President of Project Laundry List, an organization devoted to the right to dry, the bill needs amendments to placate reluctant legislators, and neighborhood and condominium associations. These associations, Lee reports, fear a 'slippery slope' that will lead to a loss of property values due to declining aesthetic concerns. Lee states that the bill will likely die without amendments to dilute the scope.
The Federal Communications Commission states that no zoning laws or private covenants (including neighborhood and condominium associations rules) may interfere with the right to receive satellite transmissions (47 CFR § 1.4000). These rules are known as the Over-the-Air-Reception-Devices (OTARD) rules. OTARD rules state that if an individual owns or has exclusive use or control over property (for example, a deck or balcony), he or she may install a satellite dish. However, the OTARD rules do not apply to commonly owned areas. In many condominium complexes, the exterior walls are common property, and the OTARD rules may not allow for the installation of satellite dishes.
Similarly, the Freedom to Display the American Flag Act of 2005 (4 USC 5 nt) allows an individual to erect a flag stand on any property he or she owns or has exclusive use or control over. In condominium associations, like with the OTARD rules, if the exterior walls are common property, the act may not apply.