Hunter v. City of Whittier

• Decision Date: 10 April 1989
• Citation: 209 Cal.App.3d 588,257 Cal.Rptr. 559
• Parties: , 66 Rad. Reg. 2d (P & F) 1110 Robert HUNTER, et al., Plaintiffs and Respondents, v. The CITY OF WHITTIER, Defendant and Appellant. Civ. B029923.
• Court: California Court of Appeals Court of Appeals

Page 559

257 Cal.Rptr. 559

209 Cal.App.3d 588, 66 Rad. Reg. 2d (P & F) 1110

Robert HUNTER, et al., Plaintiffs and Respondents, v. The CITY OF WHITTIER, Defendant and Appellant.

Civ. B029923.

Court of Appeal, Second District, Division 5, California.

April 10, 1989.

J. Robert Flandrick, Whittier City Atty. and Burke, Williams & Sorensen and Scott F. Field and Michael J. Long, Los Angeles, for defendant and appellant

Countryman & McDaniel and Donald E. Oliver, Los Angeles, for plaintiffs and respondents.

ASHBY, Associate Justice.

Plaintiffs Robert Hunter and Scott Hunter own homes in a residential zone of the City of Whittier (hereinafter City). In 1985 they installed satellite television receiving antennas, also known as satellite dish antennas or satellite earth stations, on the roofs of their homes. City subsequently enacted an ordinance regulating satellite television receiving antennas in a residential zone, requiring an owner to obtain a conditional use permit. Plaintiffs applied for permits. City officials informed plaintiffs that a conditional use permit would be granted only on conditions that the height of the antennas be reduced to 15 feet above grade (which would require the antennas be placed on the ground, not on the roofs) and that the antennas be screened so as not to be visible from the street or surrounding properties. Plaintiffs exhausted administrative appeals, did not comply with the conditions, and after being threatened with legal proceedings or misdemeanor prosecution, filed the instant action to restrain enforcement of the ordinance and for damages. For themselves and on behalf of a class, they contended the ordinance is invalid under federal law, a 1986 regulation of the Federal Communications Commission (hereinafter FCC), 47 CFR section 25.104. The FCC order preempts all local regulation of satellite television receiving antennas unless the local law meets specific standards set forth in the FCC order.

The FCC order provides: "State and local zoning or other regulations that differentiate between satellite receive-only antennas and other types of antenna facilities are preempted unless such regulations: [p] (a) Have a reasonable and clearly defined health, safety or aesthetic objective; and (b) Do not operate to impose unreasonable limitations on, or prevent, reception of satellite delivered signals by receive-only antennas or to impose costs on the users of such antennas that are excessive in light of the purchase and installation cost of the equipment. [p] Regulation of satellite transmitting antennas is preempted in the same manner except that state and local health and safety regulation is not preempted." (47 CFR § 25.104, emphasis added.)

The trial court granted a preliminary injunction restraining City from enforcing the ordinance. City appeals from the granting of the preliminary injunction.

Plaintiffs' complaint attacked the ordinance, and the conditions imposed on plaintiffs, on several grounds. Plaintiffs contended that neither the ordinance nor any published regulations defined the aesthetic objectives on which conditional use permits for satellite television receiving antennas are granted or denied. They contended that the procedures for obtaining a permit were excessively costly and that compliance Since this litigation has reached only the preliminary injunction stage, these issues have not been tried. Nevertheless, both parties urge that we now address the narrow question of law whether the ordinance contains "reasonable and clearly defined health, safety or aesthetic" objectives as required by 47 CFR section 25.104(a). The trial court opined that the ordinance has no such objectives and that the standards must be "express, not held in the bosom of the city officials." City contends that the ordinance incorporates certain standards which apply to all conditional use permits and that these general standards are sufficient even though not specifically addressed to satellite television receiving antennas. We conclude that the incorporated standards cited by City are too broad to satisfy the FCC order. The FCC has required greater specificity in light of the property owner's federally protected right to receive satellite television signals.

with the conditions required by City would be excessively costly and would unreasonably interfere with reception of satellite signals. They also contended the purpose of the ordinance was to protect City's existing cable television franchise.

BACKGROUND OF THE FCC ORDER

The FCC order was prompted by complaints from the satellite television industry that some local regulations of satellite receiving antennas improperly discriminated in favor of other forms of television communication or unreasonably burdened the homedweller's reception of satellite signals. Proponents of federal preemption cited the example of a City of Chicago ordinance which imposed burdensome procedures and did not appear motivated by health or safety concerns or "clearly articulated aesthetic criteria such as screening or offset requirements"; instead, evidence of the history of the Chicago ordinance suggested it was enacted to protect a local cable television franchise. (50 Fed.Reg. 13986, 13987, 13989 (April 9, 1985).) Other types of local ordinances were also attacked by the industry as unreasonable. "Many of these relate to antenna size and bar the use of all but the smallest antenna [e.g., one meter]. Others require set backs or screening, installation only in certain areas or yard locations, high application fees or expensive engineering data, or consent by all affected neighbors in a residential area." (Id. at p. 13987.)

Nevertheless, the FCC endorsed the right of local government to regulate satellite antennas for reasonable health, safety and aesthetic objectives. (Id. at pp. 13988-13990.) "[L]ocal communities have the right to enact ordinances which will protect the aesthetic values of citizens and this Commission should not interfere with this right provided that federal objectives are not being frustrated. Thus, we feel that ordinances requiring certain types of screening or placement should be permissable [sic ] when applied in a proper context and on an equitable basis to all facilities." (Id. at pp. 13989-13990.)

After receiving numerous comments in response to its notice of proposed ruling, the FCC in 1986 issued its report and order adopting 47 CFR section 25.104. (51 Fed.Reg. 5519 (Feb. 14, 1986).) The FCC concluded that it had the power to preempt local regulations which unduly interfere with national objectives. The Commission noted the broad mandate of section 1 of the Communications Act to make communication services available to all people of the United States (47 U.S.C. § 151 et seq. (1982)), and more specifically a recent amendment to the Communications Act, creating certain rights to receive unscrambled and unmarketed satellite signals (47 U.S.C. § 605(b)(Supp. III 1985).) These enactments, concluded the FCC, "establish a federal interest in assuring that the right to construct and use antennas to receive satellite delivered signals is not unreasonably restricted by local regulation." (51 Fed.Reg. at p. 5522.)

If a community chooses to enact an ordinance which differentiates between types of antennas, the ordinance is preempted unless it meets both paragraphs (a) and (b) of section 25.104. (51 Fed.Reg. pp. 5523-5524.)

                With respect to paragraph (a) of section 25.104, the FCC declared, "We have retained the use of health, safety and aesthetic objectives but have merely required these to be 'reasonable' and 'clearly defined.'   These terms are readily susceptible to application by local authorities and give some flexibility in the application of local regulations to individual locations.  To be more specific in a general national policy statement would be inadvisable."  (Id. at p. 5524.)
                

Additional standards are imposed by paragraph (b) of section 25.104. As explained by the FCC: "In addition to defining the reasonable objective of an ordinance which differentiates in its treatment of antennas, a community is limited in the types of restrictions it can apply. It cannot unreasonably limit or prevent reception by requiring, for example, that a receive-only antenna be screened so that line of sight is obscured. Moreover, an ordinance which discriminates cannot impose size restrictions only on receive-only antennas which would effectively preclude reception. [p] As a further standard we are requiring that any local restriction which fails to meet our discrimination tests must not impose costs which are excessive in light of the costs of the equipment. Again, in a general policy statement, it is inadvisable to specify what 'excessive' would mean in a particular situation but we are confident that local authorities who are familiar with local situations will be capable of making accurate distinctions. If antenna users are not satisfied with the results of local determinations, it would be within the ability of a court to make legal determinations of reasonableness or excessiveness." (51 Fed.Reg. at p. 5524.)

CITY OF WHITTIER ORDINANCE

Ordinance No. 2345, enacted in 1985 (prior to the FCC preemption order), amended various provisions of the Whittier Municipal Code to refer to satellite television receiving antennas.

Satellite television receiving antennas, along with flagpoles and amateur radio receiving and transmitting antennas, are a permitted "accessory use" allowed in R zones for the private noncommercial use of the occupant of a residence located upon the lot. (Whittier Mun.Code, § 18.10.020(J)), Limitations on the use of antennas and flagpoles are stated in section 18.10.030(I). Four of these limitations relating to location, height, bulk and bracing are specific, and are not in dispute in this case. ¹ Apparently, plaintiffs' installations are not in violation of these limitations.

The fifth limitation is the...