Monday, October 3, 2011

Condo owners sue association over cell tower health risks

A Naples couple, Jerry and Trish Cohen, have filed suit against their condominium association as a result of cellphone towers being installed on the roof above their penthouse unit. Mr. and Mrs. Cohen claim that these towers have disturbed their quiet enjoyment of their property both as a result of the noise they produce as well as the health risks they believe are associated with them.

Jerry Cohen claims that noise from the cell towers routinely awakened the couple usually between 2 and 4 am with vibrations shaking their ceiling. The Cohens bought the unit back in 1982 and finally abandoned it in 2007 after they claim the association took no steps to address their noise and health concerns.

Their complaint, which was filed in August in Collier Circuit Court, delves into the health risks that some scientists attribute to cellphone use. While scientists differ on the risks, the Cohens claim that the studies are based on average cell phone use and not living underneath large towers. While an association typically has the authority to enter into contracts such as the leasehold of roof space for cell tower use without membership approval, adding the towers and their related structures and equipment would have constituted a material alteration of the common elements requiring membership approval. Assuming that such membership approval was obtained, the Cohens were still the most impacted parties given their unit's proximity to the roof, the noise and any health risks.

Almost a decade ago, a cell tower was slated to go up across the street from my own community. After our residents did some research, reviewed the plans for the tower, the proximity to our homes and the equipment and barbed wire wall that would have accompanied the tower, we mobilized and forced the cell phone company to locate the tower close to a highway and not our homes. At that time, I couldn't imagine living across from a cell tower let alone under one.

This case raises the issue of whether the owners who are most impacted by an installation like this should have to consent in addition to the other approval required. Of course, that also raises the specter of one or two people blocking something that the entire community might feel is beneficial.

If you would like to know where there are cellphone towers near your home, go to http://www.antennasearch.com.

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