ZUBARAU v. PALMDALE








Filed 1/27/11



CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

ALEC ZUBARAU, Plaintiff and Appellant, v. CITY OF PALMDALE, Defendant and Appellant.

B216308 (Los Angeles County Super. Ct. No. BS114330)

APPEALS from a judgment of the Superior Court of Los Angeles County, David P. Yaffe, Judge. Affirmed in part, reversed in part, and remanded for further proceedings.
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 for Defendant and Appellant City of Palmdale.
Leonard J. Shaffer for Plaintiff and Appellant Alec Zubarau.
Booth, Freret, Imlay & Tepper, and Christopher D. Imlay for The American Radio Relay League, Incorporated as Amicus Curiae on behalf of Plaintiff and Appellant Alec Zubarau.


INTRODUCTION
Plaintiff Alec Zubarau, an amateur or “ham” radio operator, brought an action against the City of Palmdale^[1] 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 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.
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.^[2] Zubarau 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]
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 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 Ordinance sections 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 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.
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 Resolution No. 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 A^[5] 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 Ordinance section 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 Ordinance section 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.
The City Council heard Zubarau’s appeal of the Commission’s decision. With respect to SFMM 05-139 (the tower antenna), the City Council made findings consistent with the Commission’s findings in Resolution No. PC-2007-025 (revocations), but also made the additional finding that the horizontal antenna array was installed without the required approval of the Planning or Building and Safety Departments. The City Council made no findings with respect to SFMM 05-304 (the roof-mounted antenna). In Resolution No. CC 2008-009, the City Council denied Zubarau’s appeal concerning the revocation of SFMM 05-139 (the tower antenna) and granted the appeal concerning the revocation of SFMM 05-304 (the roof-mounted antenna).
Zubarau filed in the trial court a verified petition for writ of mandate and declaratory relief. In his first cause of action, Zubarau sought a writ of mandate directing the City Council to grant his appeal and reinstate SFMM 05-139 and permit number B05-00722 (tower antenna). In his second cause of action for a writ of mandate to strike portions of the zoning ordinance, he asserted that state and federal law preempted City Zoning Ordinance section 95.03 B.1, which limits the height of the active element of an antenna array to a maximum height of 30 feet, and City Zoning Ordinance section 95.03 B.3, which concerns the regulation of radio frequency interference. In his third cause of action, he sought a declaration that parts of City Zoning Ordinance sections 95.03 A and 95.03 B^[6] are unenforceable as vague. In this cause of action, Zubarau alleged that City Zoning Ordinance section 95.03 permitted a 75 foot vertical antenna, but limited the “active element” of an “antenna array” to a maximum height of 30 feet without defining “active element” or “antenna array.” “Active element” and “antenna array” may be interpreted in different ways, Zubarau alleged, thus rendering the sections confusing, unintelligible, and subject to arbitrary enforcement.
At the hearing on Zubarau’s writ petition, the trial court asked Zubarau’s counsel to explain the scope of Zubarau’s requested relief as to his first cause of action. Zubarau’s counsel asserted that the petition for writ of mandate sought to reverse the City Council’s determination only as to the 55 foot vertical tower antenna. The cause of action did not concern the horizontal antenna array. The trial court issued Zubarau’s requested writ of mandate only with respect to the tower antenna and denied any relief requested by the other causes of action. The trial court’s minute order stated, in part, that the City Council’s administrative decision to eliminate the tower antenna completely was an abuse of discretion because it violated Government Code section 65850.3^[7] and contained findings that were not supported by substantial evidence. The trial court’s judgment vacated the City Council’s Resolution No. CC 2008-009, denied Zubarau’s second cause of action as moot, and denied the third cause of action without explanation.
Zubarau filed a motion for attorney fees pursuant to Code of Civil Procedure section 1021.5 and Government Code section 800. The trial court denied Zubarau’s motion pursuant to Code of Civil Procedure section 1021.5 because Zubarau failed to show that he had conferred a significant benefit on anyone other than himself. The trial court denied Zubarau’s motion pursuant to Government Code section 800 because Zubarau failed to show that his personal stake in the outcome of the case was disproportionate to the attorney fees that he incurred, that he actually incurred attorney fees, or that he was obligated to reimburse his attorneys if he recovered attorney fees.

DISCUSSION
I. Standing And Ripeness
The City contends that Zubarau lacked standing to challenge, in his second and third causes of action, City Zoning Ordinance section 95.03. The City further contends that the challenges are not ripe because Zubarau has not applied for a necessary permit, the challenged parts of the ordinance thus have not adversely been applied to him, and, consequently, he has not exhausted his administrative remedies. We disagree.

A. Standing
“Standing is a jurisdictional issue that . . . must be established in some appropriate manner.” (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1232.) “As a general principle, standing to invoke the judicial process requires an actual justiciable controversy as to which the complainant has a real interest in the ultimate adjudication because he or she has either suffered or is about to suffer an injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented to the adjudicator. [Citations.] To have standing, a party must be beneficially interested in the controversy; that is, he or she must have ‘some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.’ [Citation.] The party must be able to demonstrate that he or she has some such beneficial interest that is concrete and actual, and not conjectural or hypothetical.” (Holmes v. California Nat. Guard (2001) 90 Cal.App.4th 297, 314-315; Coral Construction, Inc. v. City and County of San Francisco (2004) 116 Cal.App.4th 6, 9-10 [contractor had standing to challenge the constitutionality of a city ordinance that gave contract bidding preference to minorities, women, and local enterprises without identifying a future contract on which the contractor would bid].) “‘[A] person has standing to challenge an ordinance or a statute invalid on its face without first exhausting the licensing or permit procedures. (City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 135 [164 Cal.Rptr. 539, 610 P.2d 436, 12 A.L.R.4th 219] . . . .)’ (Ebel v. City of Garden Grove (1981) 120 Cal.App.3d 399, 409 [176 Cal.Rptr. 312].)” (J.L. Thomas, Inc. v. County of Los Angeles (1991) 232 Cal.App.3d 916, 924.)
Zubarau owns property in the City that is subject to City Zoning Ordinance section 95.03 and participates in amateur radio communications. He has applied for permits for two amateur radio antennae. Zubarau brought an action challenging the facial validity of parts of section 95.03. Zubarau’s ongoing participation in an avocation that is subject to the challenged provisions of City Zoning Ordinance section 95.03 is sufficient to establish a beneficial interest in a justiciable controversy, thus establishing that he had standing to bring his mandate action. (Holmes v. California Nat. Guard, supra, 90 Cal.App.4th at pp. 314-315; Coral Construction, Inc. v. City and County of San Francisco, supra, 116 Cal.App.4th at pp. 9-10.) Moreover, Zubarau had standing to bring his declaratory relief cause of action because it challenged the ordinance’s facial validity. (J.L. Thomas, Inc. v. County of Los Angeles, supra, 232 Cal.App.3d at p. 924.)

B. Ripeness
The City also asserts that Zubarau’s attack on the zoning ordinance is not ripe for the same reasons it claims he lacks standing. “‘The ripeness requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely advisory opinions. [Citation.] It is rooted in the fundamental concept that the proper role of the judiciary does not extend to the resolution of abstract differences of legal opinion. . . . [T]he ripeness doctrine is primarily bottomed on the recognition that judicial decisionmaking is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy.’ [Citation.]” (Coral Construction, Inc. v. City and County of San Francisco, supra, 116 Cal.App.4th at pp. 25-26.)
As stated above, Zubarau owns property in the City and participates in an avocation that is subject to City Zoning Ordinance section 95.03. He has applied for permits in connection with the subject of the City’s Zoning Ordinance, and he has been subjected to determinations under the ordinance and subject to those determinations. These facts are sufficient to satisfy the ripeness requirement because they present a “‘definite and concrete [controversy] touching the legal relations of parties having adverse legal interests.’ [Citation.]” (Coral Construction, Inc. v. City and County of San Francisco, supra, 116 Cal.App.4th at p. 26.)^[8]

II. The Tower Antenna
The City contends that the trial court erred in issuing a writ of mandate on Zubarau’s first cause of action. The writ ordered the City to vacate City Council Resolution No. CC 2008-009, denying Zubarau’s appeal concerning removal of the vertical tower antenna.

A. Standard of Review
“‘In reviewing the trial court’s ruling on a writ of mandate (Code Civ. Proc., § 1085), the appellate court is ordinarily confined to an inquiry as to whether the findings and judgment of the trial court are supported by substantial evidence. [Citation.] However, the appellate court may make its own determination when the case involves resolution of questions of law where the facts are undisputed. [Citation.]’ [Citation.]” (Caloca v. County of San Diego (1999) 72 Cal.App.4th 1209, 1217.)

B. Applicable Principles
Government Code section 65850.3 provides, “Any ordinance adopted by the legislative body of a city or county that regulates amateur radio station antenna structures shall allow those structures to be erected at heights and dimensions sufficient to accommodate amateur radio service communications, shall not preclude amateur radio service communications, shall reasonably accommodate amateur radio service communications, and shall constitute the minimum practicable regulation to accomplish the city’s or county’s legitimate purpose. It is the intent of the Legislature in adding this section to the Government Code, to codify in state law the provisions of Section 97.15 of Title 47 of the Code of Federal Regulations, which expresses the Federal Communications Commission’s limited preemption of local regulations governing amateur radio station facilities.”
As relevant here, section 97.15 of Title 47 of the Code of Federal Regulations provides, “Except as otherwise provided herein, a station antenna structure may be erected at heights and dimensions sufficient to accommodate amateur service communications. (State and local regulation of a station antenna structure must not preclude amateur service communications. Rather, it must reasonably accommodate such communications and must constitute the minimum practicable regulation to accomplish the state or local authority’s legitimate purpose. See PRB-1, 101 FCC 2d 952 (1985) for details.)” (47 C.F.R. § 97.15(b).)
In In the Matter of Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities (PRB-1) (1985) 101 F.C.C.2d. 952, paragraph 25, footnote omitted, the FCC ruled, “Because amateur station communications are only as effective as the antennas employed, antenna height restrictions directly affect the effectiveness of amateur communications. Some amateur antenna configurations require more substantial installations than others if they are to provide the amateur operator with the communications that he/she desires to engage in. For example, an antenna array for international amateur communications will differ from an antenna used to contact other amateur operators at shorter distances. We will not, however, specify any particular height limitation below which a local government may not regulate, nor will we suggest the precise language that must be contained in local ordinances, such as mechanisms for special exceptions, variances, or conditional use permits. Nevertheless, local regulations which involve placement, screening, or height of antennas based on health, safety, or aesthetic considerations must be crafted to accommodate reasonably amateur communications, and to represent the minimum practicable regulation to accomplish the local authority’s legitimate purpose.”
In 2000, in In the Matter of Modification and Clarification of Policies and Procedures Governing Siting and Maintenance of Amateur Radio Antennas and Support Structures, and Amendment of Section 97.15 of the Commission’s Rules Governing the Amateur Radio Service (2000) 15 F.C.C.R. 22151, the FCC issued an Order on Reconsideration that addressed PRB-1 and “amplified” “upon the meaning of ‘reasonable accommodation’ of amateur communications in the context of local land use and zoning regulations.” (Id. at ¶ 8.) The order states, “The Commission adopted a limited preemption policy for amateur communications because there is a strong federal interest in promoting amateur communications. We do not believe that a zoning regulation that provides extreme or excessive prohibition of amateur communications could be deemed to be a reasonable accommodation. For example, we believe that a regulation that would restrict amateur communications using small dish antennas, antennas that do not present any safety or health hazard, or antennas that are similar to those normally permitted for viewing television, either locally or by satellite, is not a reasonable accommodation or the minimum practicable regulation. On the other hand, we recognize that a local community that wants to preserve residential areas as livable neighborhoods may adopt zoning regulations that forbid the construction and installation in a residential neighborhood of the type of antenna that is commonly and universally associated with those that one finds in a factory area or an industrialized complex. Although such a regulation could constrain amateur communications, we do not view it as failing to provide reasonable accommodation to amateur communications.” (Ibid.)
Substantial evidence supported the City Council’s decision to deny Zubarau’s appeal of the Commission’s resolution revoking the zoning clearance for SFMM 05-139 and the Commission’s order to remove the tower antenna. The Commission and the City Council found that the installation and operation of Zubarau’s tower antenna (SFMM 05-139) were inconsistent with the purpose and intent of the vertical antenna regulations in City Zoning Ordinance section 95.03 A because the tower antenna was not compatible with the surrounding neighborhood; the tower antenna 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 tower antenna posed a safety hazard because it 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 Ordinance section 95.03 B.2.b; the operation of the tower antenna interfered with electrical equipment in the neighborhood in violation of Zoning Ordinance section 95.03 B.3; and the height of the active array on the tower antenna exceeded 30 feet. Thus, the City’s action in ordering removal of the tower antenna cannot reasonably be viewed as “extreme or excessive prohibition of amateur communications.” By its resolution, the City Council did not bar all antennae on Zubarau’s property. Instead, the City Council found that the particular 55 foot tower antenna at issue was incompatible with the neighborhood based in part on safety and aesthetic concerns.
The City Council’s reliance on the tower antenna’s radio frequency interference was improper because, as we explain post, federal law fully preempts matters related to radio frequency interference. Reliance on an improper ground is irrelevant when the decision is supported by other, proper grounds. (See Schroeder v. Municipal Court (1977) 73 Cal.App.3d 841, 847 [“it is irrelevant to the reasonableness of an ordinance . . . that a member of the planning commission advanced an impermissible ground in denying a permit”].)
Under state and federal law, the City was not required to allow Zubarau to erect a tower antenna of any size he wished, regardless of the tower antenna’s compatibility with the surrounding neighborhood. Instead, the applicable laws required the City to accommodate reasonably amateur radio communications. The City Council did make such accommodation when it granted Zubarau’s appeal with respect to SFMM 05-304, thereby permitting Zubarau to maintain his roof-mounted antenna, which extends to a height of approximately 40 feet, and thus to participate in amateur radio communications. Because substantial evidence supports the Commission’s decision to revoke the zoning clearance for SFMM 05-139, and the City Council reasonably accommodated Zubarau’s ability to participate in amateur radio communications when it allowed him to keep his roof-mounted antenna, the trial court erred in granting Zubarau’s petition for writ of mandate vacating the City Council’s Resolution No. CC 2008-009 concerning the tower antenna.



TO BE CONTINUED AS PART II….



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APPENDIX

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