Zubarau v. City of Palmdale

• Decision Date: 20 April 2011
• Docket Number: No. B216308.,B216308.
• Citation: 11 Cal. Daily Op. Serv. 1351,2011 Daily Journal D.A.R. 16,192 Cal.App.4th 289,121 Cal.Rptr.3d 172
• Parties: Alec ZUBARAU, Plaintiff and Appellant, v. CITY OF PALMDALE, Defendant and Appellant.
• Court: California Court of Appeals

192 Cal.App.4th 289

121 Cal.Rptr.3d 172

11 Cal. Daily Op. Serv. 1351

2011 Daily Journal D.A.R. 1655

52 Communications Reg. (P&F) 527

Alec ZUBARAU, Plaintiff and Appellant,

v.CITY OF PALMDALE, Defendant and Appellant.

No. B216308.

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

Jan. 27, 2011.

Review Denied Apr. 20, 2011.

**175 City of Palmdale, Wm. Matthew Ditzhazy, City Attorney, Judy K. Skousen, Assistant City Attorney; Meyers, Nave, Riback, Silver & Wilson, Deborah J. Fox, and Dawn A. McIntosh, Los Angeles, for Defendant and Appellant City of Palmdale.

Leonard J. Shaffer, Los Angeles, for Plaintiff and AppellantAlec Zubarau.

Booth, Freret, Imlay & Tepper, and Christopher D. Imlay for The American Radio Relay League, Incorporated as Amicus Curiae on behalf of Plaintiff and AppellantAlec Zubarau.

MOSK, J.

*294 INTRODUCTION

PlaintiffAlec Zubarau, an amateur or "ham" radio operator, brought an action against the City of Palmdale¹ challenging the City's order to have him remove a tower antenna from his residential backyard and a roof-mounted antenna from his residential roof.He contends that the **176 City's ordinance regulating the height of antennae in a residential area is preempted by state and federal law and that the ordinance is unconstitutionally vague.

We hold that Zubarau has standing and that the issues are ripe.We further hold that the City's order to remove the tower antenna is supported by substantial evidence and is in compliance with state and federal laws in that it does not constitute an undue interference with amateur radio communications permitted by state and federal law.But to the extent the ordinance purports to regulate radio frequency interference, such regulation is preempted by federal law.In addition, the challenged ordinance is unenforceable in part because of apparent inconsistent height limitations that render it unconstitutionally vague.We affirm the trial court's denial of attorney fees to Zubarau on his first cause of action because he is no longer the successful party and remand the matter to the trial court for a determination of whether he is entitled to attorney fees on the remaining causes of action.

BACKGROUND

The City's Planning Department issued Single Family Minor Modification (SFMM) 05-139 approving Zubarau's application to construct at his home in Palmdale a 55 foot tower antenna for amateur radio communications.According to Zubarau, when not in use, the tower could be retracted to a height of 21 feet.The City's Building and Safety Department issued Zubarau permit number B05-00722 to install the "antenna with metal cage."Zubarau constructed the tower antenna, and the City issued its final approval.

The City received a complaint concerning an antenna attached to Zubarau's roof.The City found a violation and informed Zubarau that he needed to obtain "planning approval" for the roof-mounted antenna.Zubarau complied with the City's requirements; and the City issued SFMM 05-304 for the roof-mounted antenna.The roof-mounted antenna extended to a height of approximately 40 feet.The City then closed the matter instigated by the complaint.

*295 Over a year later, Zubarau installed, without any permit, a horizontal antenna array on the tower antenna.The City's Code Enforcement Division received complaints that Zubarau had several antennae in his rear yard, that he was adding more antennae, and that the antennae were interfering with "TV, radio, baby monitors, etc."

As a result, Code Enforcement officers and a Building and Safety officer inspected Zubarau's property.The officers determined that the ground mounted tower antenna had been modified to include a horizontal antenna array that extended about three feet into the required 10 foot side yard.The officers noted that the tower antenna was a telescoping tower that could be raised to a height of about 55 feet and that the horizontal antenna array was located at the top of the antenna when fully extended, thus reaching a total height of 61 feet, nine inches.The Code Enforcement Officer informed Zubarau that the permissible maximum height for the array was 30 feet.²Zubarau denied that the array had been raised to 65 feet.Thereafter, in March the officer visited the site seven times and found the array raised to a height of 65 feet.³

**177 City staff met with Zubarau to discuss the installation of the antennae, the required setbacks, and interference with electronic equipment in the neighborhood.Zubarau stated that he believed he was in compliance with all federal, state, and local regulations with regard to the antennae and their operation.

Then, the residents in the neighborhood surrounding Zubarau's property submitted a petition with 68 signatures requesting that the City revoke the approvals for Zubarau's antennae, require the removal of the antennae, and amend the applicable zoning ordinance.The City notified Zubarau that the *296 City Planning Commission(Commission) would hold a hearing to consider modification or revocation of the zoning approvals under SFMM's 05-139 (the tower antenna)⁴ and 05-304 (the roof-mounted antenna).The notice informed Zubarau that the City had determined that the antennae permitted under SFMM's 05-139 and 05-304 did not comply with the purpose and intent of vertical antennae as specified in City Zoning Ordinance section 95.03 A, and that the antennae were not installed or being operated in compliance with City Zoning Ordinancesections 95.03 B.2.b and 95.03 B.3.Pictures of the tower antenna and roof-mounted antenna are in the appendix to this opinion.

Zubarau submitted to the Planning Department a letter setting forth his position and attaching various documents concerning the accommodation of amateur radio communications.Zubarau's neighbors submitted letters to the Planning Department objecting to the tower antenna.The neighbors' letters asserted safety and aesthetic concerns, the possible diminution of property values, and electronic interference with their television reception and other electronic equipment.

The Planning Department issued a memorandum for the hearing recommending revocation of SFMM's 05-139 and 05-304.At the hearing, ham radio operators testified about the community benefits of ham radio, including its service in emergencies.Zubarau testified that he knew he was not in compliance because his antenna encroached on the setback and that he was willing to move the tower antenna if necessary.Zubarau's neighbors testified about their concerns over Zubarau's antennae.One commissioner stated that he drove by Zubarau's residence prior to the hearing, that there was a "fair breeze," the horizontal array was twisting in the wind, and the public's perception of their safety from the array was as important as their actual safety.He added that in his opinion the tower antenna was not aesthetically pleasing.Another commissioner **178 stated that Zubarau had a right to enjoy his "hobby," and Zubarau's neighbors had a right to enjoy their properties.

The matter was continued to June 21, 2007, to allow the Commission's staff to arrange a meeting between Zubarau and his neighbors to attempt to resolve the matter.The Commission ordered Zubarau to remove the horizontal array and "anything" that did not exist as of January until the Commission made a final determination.

*297 The Commission's staff set up a meeting between Zubarau and his neighbors on May 8, 2007.In a memorandum to the Commission, a Commission staff member reported that it did not appear from the meeting that mutual resolution of the disputed issues was likely.Zubarau was reported to have agreed to contact the Federal Communications Commission(FCC) to inquire about its ability to test his radio operations to demonstrate that the operations were not interfering with electronic devices at neighboring properties.Because the Commission staff had not received any information from Zubarau, it recommended continuing the hearing to allow Zubarau additional time to forward any report or information.

Following two more continuances, the hearing took place.Zubarau did not submit any FCC test results to the Commission.According to Zubarau's counsel, the FCC did not require testing.Zubarau's counsel explained that if a person's electronic equipment experienced interference, it was the fault of the equipment, and any complaint should be made to the equipment's manufacturer.

After testimony concerning the benefits of amateur or ham radio and the deleterious effects of the antennae, the Commission adopted ResolutionNo. PC-2007-025 revoking the zoning approvals for SFMM's 05-139 and 05-304.The Commission found that the installation and operation of Zubarau's antennae were inconsistent with the purpose and intent of the vertical antenna regulations in City Zoning Ordinance section 95.03 A⁵ because the antennae were not compatible with the surrounding neighborhood; the antennae greatly exceeded the height of all residential buildings and accessory structures in the area and created an adverse visual impact on the neighborhood, especially when the tower antenna was raised to its full height with the horizontal antenna array; the antennae posed a safety hazard because they could fall in high winds or during seismic activity; the horizontal antenna array extended about three feet into the required 10 foot side yard setback in violation of City Zoning Ordinancesection 95.03 B.2.b.; based on "anecdotal evidence" from Zubarau's neighbors, the operation of the antennae interfered with electrical equipment in the neighborhood in violation of City Zoning Ordinancesection 95.03 B.3; and the height of the active array on the antennae exceeded 30 feet in violation of the height restriction in the section 95.03 B.1 of the City Zoning Ordinance.Zubarau was ordered to cease and desist all operations and to remove all vertical antennae within 14 days.

*298 The City Council heard Zubarau's appeal of the Commission's...