Indian Peak Props. v. City of Rancho Palos Verdes
| Decision Date | 16 November 2021 |
| Docket Number | B303325 |
| Court | California Court of Appeals Court of Appeals |
| Parties | INDIAN PEAK PROPERTIES, LLC, Plaintiff and Appellant, v. CITY OF RANCHO PALOS VERDES et al., Defendants and Respondents. |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 18STCP02913, Mitchell L. Beckloff and Patricia D. Nieto Judges. Affirmed.
Bradley & Gmelich, Barry A. Bradley and Dawn Cushman for Plaintiff and Appellant.
Aleshire &Wynder, William W. Wynder, June S. Ailin and Alison S. Flowers for Defendants and Respondents City of Rancho Palos Verdes and Rancho Palos Verdes Planning Commission.
The City of Rancho Palos Verdes revoked Indian Peak Properties LLC's conditional use permit (CUP 230) for the operation of commercial antennae on residential property based on Indian Peak's installation and operation of additional antennae in violation of permit conditions. The trial court denied Indian Peak's petition for a writ of mandamus pursuant to Code of Civil Procedure sections 1094.5 and 1085, [1] rejecting its arguments the City had not provided it a fair hearing and revocation of CUP 230 was an abuse of discretion. We affirm.
The City has a municipal ordinance that regulates the installation and operation of commercial antennae. .) On June 21, 2001 James Kay, Jr. (now president of Indian Peak) applied for a conditional use permit authorizing the use for commercial purposes of what he described as preexisting noncommercial amateur antennae on the roof of residential property he owned on Indian Peak Road, Rancho Palos Verdes.[2] At that time there was a horizontal antenna rack mounted on the roof with five vertical antenna masts for the reception and transmission of radio and Internet signals; each mast had four radiating elements. There were also two television antennae on the roof.
Following three public hearings the City's planning commission conditionally approved the request on November 15, 2001, but limited the number and placement of the antennae. Kay appealed to the city council, which denied the appeal and formally approved CUP 230, limited to two vertical antenna masts and television antenna with a number of additional conditions (resolution no. 2002-27). Kay filed a federal lawsuit challenging the limits and conditions. On July 14, 2004 the district court ruled in Kay's favor and ordered the City to issue a new resolution allowing Kay to use the original antenna array (the five mast structure with two television aerial antennae) subject to reasonable conditions. The City adopted a new resolution as ordered, permitting operation of the original antenna array as depicted in Kay's June 21, 2001 application and amending eight conditions for approval of CUP 230 (resolution no. 2004-109).
Kay returned to federal court, arguing the conditions imposed by the new resolution were unreasonable. The district court agreed that requiring Kay to use the property as his primary residence was unreasonable, but otherwise denied Kay's challenges to the conditions imposed. The City adopted a new resolution in 2005 amending the invalidated condition to require only that the residence be maintained in a manner suitable for occupancy as a single-family residence in compliance with the City's municipal code (resolution no. 2005-75). The resolutions approving and modifying CUP 230 require approval by the city council of an amendment to CUP 230 for any "future changes to the location or configuration or which increase the number or the height of any approved antennae or element" of the original antenna array.
Indian Peak, Kay's limited liability company, apparently obtained title to the property directly from Kay or through an intermediary sometime in 2005. As acknowledged in its opening brief, "[f]rom approximately 2001 to 2014, Indian Peak owned and operated the Property and used the antenna array with modifications and changes and additions to the antenna."
The City received a complaint in August 2014 regarding the number of commercial antennae on the roof of the property. The City inspected the property and discovered there were now at least 11 vertical antennae and other equipment on the roof. On August 15, 2014 the City mailed Indian Peak a notice it was in violation of the conditions of CUP 230 and directed Indian Peak to "[r]emove all but five of the vertical antennae from the roof, and ensure the remaining five antennae meet the requirements as described" in CUP 230 or "[s]ubmit an application to the City, with the required fee, to request a revision to Conditional Use Permit No. 230 to allow the existing antennae to remain." The City's notice further stated a review of the case would be conducted on September 12, 2014, and cautioned, "If the property has not been brought into compliance with CUP No. 230, or if an application has not been submitted to the City to request a revision to the Conditional Use Permit by said deadline, further code enforcement action will occur."
Indian Peak apparently requested extensions of time, indicating it intended to submit an application for a revision to CUP 230. The City conducted additional inspections of the property, which determined that no changes had been made. A second notice of violation was sent on October 14, 2014 and a final notice on October 28, 2014. The final notice stated,
Counsel for Indian Peak (the successor law firm to the firm that had represented Kay during the initial CUP application process)[3] responded to the notices in December 2014, asserting the proposed $5, 000 fee for an application to revise CUP 230 was an unlawful special tax and proposing a $500 fee to process the application. The letter also stated, "[O]ur client contends that to the extent that there have been any changes to the antennae and structures located on the property, those changes do not require a CUP revision as they constitute no more than the sort of changes that could be expected to occur over multiple years in the ordinary course of business at a property of this sort." Finally, the letter warned, if the City did not comply with Indian Peak's requests, Indian Peak intended to pursue construction of "a commercial antenna of over enormous proportions," attaching a photograph of such a structure to emphasize its threat.
Over the next three-plus years the City's attorneys and Indian Peak's counsel engaged in a sometimes-contentious exchange of letters regarding the additional antennae, Indian Peak's obligation to comply with CUP 230 and the terms for an application to revise CUP 230. On October 21, 2015 the City again wrote that Indian Peak must remove all but five of the vertical antennae and ensure the remaining antennae met the requirements of CUP 230 or submit an application to revise CUP 230 with the required application fee or request for a fee waiver. Counsel for Indian Peak responded on November 6, 2015 noting no additions to the roof antenna array had been made in the past five years and asserting, whatever modifications had been made in the past, no revision or amendment to CUP 230 was necessary "because all of the antennas are compliant with CUP No. 230 and with all applicable federal laws and municipal code sections." The letter asserted that a large dish drum antenna on the roof, which the City had indicated was not authorized by CUP 230 and needed to be removed, was exempt from local regulation under federal law. Counsel also stated the fee proposed for an application to modify CUP 230 was unreasonable.
The city attorney wrote in March 2016 that modifications to Indian Peak's antenna array had, in fact, been made in 2014 and 2015 and requested citation to federal authority exempting the satellite dish drum from local regulation.[4] In April 2016 Indian Peak appeared to acknowledge it was not strictly complying with CUP 230 and requested the City "approve the additional antenna as a director's approval under Municipal Code § 17.76.020[, subdivision] A12b and to charge my client fees that are commensurate with a simple modification for a Commercial Antenna."[5] Counsel also wrote, "We do not believe that the additional antennas that were installed necessitate a Revision to the entire CUP and do not justify fees for a CUP Revision." The city attorney responded that removal of the additional antennae or modification of CUP 230 was necessary and reminded Indian Peak that CUP 230 required City approval of additional antennae before they were installed, not after-the-fact. The letter set a deadline of May 2, 2016 for submission of an application to modify CUP 230.
On May 5, 2016 Indian Peak's counsel proposed, as a compromise applying for a modification of CUP 230 under the expedited, "over-the-counter" review procedure provided in RPV Municipal Code section 17.76.020, subdivision (A)(12)(b), for new antennae on existing towers (with a $500 filing fee), with approval required only from the City's director of community development, rather than the full process for modification of a residential conditional use permit. Counsel also stated the application could not be submitted by the City's...
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