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)

STORY CONTINUE FROM PART I….




III. State And Federal Law Preemption
Zubarau contends that with respect to his second cause of action, the trial court erred in failing to invalidate City Zoning Ordinance section 95.03 B.3 because the section regulates radio frequency interference, a matter entirely preempted by federal law. Zubarau also contends that the trial court erred in failing to grant his petition for writ of mandate to invalidate as preempted by state and federal law the 30 foot maximum height limitation for the “active element of an antenna array” in City Zoning Ordinance section 95.03 B.1. Zubarau’s writ petition with respect to the regulation of radio frequency interference should have been granted. We need not reach the issue of whether the trial court properly denied Zubarau’s writ petition with respect to the height limitation for the “active element of an antenna array” because, as we explain post, the provision containing that height limitation is unconstitutionally vague.

A. Standard of Review
Zubarau’s contentions raise a question of law on undisputed facts—whether City Zoning Ordinance section 95.03 B.3 is preempted by state or federal law. As such, we make our own determination of whether the writ petition should have been granted. (Caloca v. County of San Diego, supra, 72 Cal.App.4th at p. 1217.) Whether an ordinance is valid is a question of law. (Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 654, fn. 2; Garcia v. Four Points Sheraton LAX (2010) 188 Cal.App.4th 364, 373 [preemption]; California Veterinary Medical Assn. v. City of West Hollywood (2007) 152 Cal.App.4th 536, 546.) “Statutory construction is a question of law for the courts and the rules of statutory construction applicable to statutes are also applicable to local ordinances. [Citation.]” (Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 502.) Whether a law is preempted is an issue of law, reviewed de novo. (Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1089, fn. 10 [“federal preemption presents a pure question of law”]; Whisman v. San Francisco United School Dist. (1978) 86 Cal.App.3d 782, 793 [effect of state law on local charter provision is “a naked issue of law”].)

B. Applicable Principles
“To obtain writ relief under Code of Civil Procedure section 1085, the petitioner must show there is no other plain, speedy, and adequate remedy; the respondent has a clear, present, and ministerial duty to act in a particular way; and the petitioner has a clear, present and beneficial right to performance of that duty. [Citation.] A ministerial duty is one that is required to be performed in a prescribed manner under the mandate of legal authority without the exercise of discretion or judgment.” (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 593.) “Mandamus is . . . appropriate for challenging the constitutionality or validity of statutes or official acts. [Citations.]’ [Citation.]” (Wenke v. Hitchcock (1972) 6 Cal.3d 746, 751.)
The legislative history of the 1982 amendment to the Communications Act of 1934, 47 U.S.C. § 151, et seq. provides, “The Conference Substitute is further intended to clarify the reservation of exclusive jurisdiction to the Federal Communications Commission over matters involving RFI [radio frequency interference]. Such matters shall not be regulated by local or state law, nor shall radio transmitting apparatus be subject to local or state regulation as part of any effort to resolve an RFI complaint. . . . [T]he Conferees intend that regulation of RFI phenomena shall be imposed only by the Commission.” (H.R. Rep. No. 765, 97th Cong., 2d Sess. P. 33 (1982), reprinted in 1982 U.S. Code Cong. & Admin. News, p. 2277; 960 Radio, Inc. (F.C.C. No. 85-578, Nov. 4, 1985) 1985 WL 193883, ¶ 5.) In 960 Radio, Inc., the FCC, in a memorandum opinion and declaratory ruling, ruled that “federal power in the area of radio frequency interference is exclusive; to the extent that any state or local government attempts to regulate in this area, their regulations are preempted.” (Id. at ¶ 7.) An agency declaration of preemption can preempt unless the authorizing statute or legislative history of the statute is to the contrary. (City of New York v. F.C.C. (1988) 486 U.S. 57, 63; Fidelity Federal Sav. and Loan Assn. v. de la Cuesta (1982) 458 U.S. 141, 152-154; Lynnbrook Farms v. Smithkline Beecham Corp. (1996) 79 F.3d 620.) No such Congressional indication of non-preemption has been brought to our attention.
City Zoning Ordinance section 95.03 B.3 provides, “Interferences. The operation of the antenna shall not cause interference with any electrical equipment in the surrounding neighborhoods (e.g. television, radio, telephone, computer, etc.), unless exempted by Federal regulation.” Such purported regulation of radio frequency interference concerns an area over which the FCC has exclusive jurisdiction. (960 Radio, Inc., supra, 1985 WL 193883 at ¶¶ 5, 7.) Accordingly, the trial court should have granted Zubarau’s writ petition invalidating the challenged part of the zoning ordinance.
The City argues that Zubarau’s preemption claim with respect to radio frequency interference is barred by the statute of limitations in Government Code section 65009, subdivision (c)(1)(B). The City’s argument is unavailing because even if that section applied to Zubarau’s preemption claims, the City forfeited any statute of limitations defense by failing to raise it in the trial court. (Union Sugar Co. v. Hollister Estate Co. (1935) 3 Cal.2d 740, 745; Bohn v. Watson (1954) 130 Cal.App.2d 24, 36-37.) The City contends that it did not forfeit the statute of limitations defense because Zubarau did not raise a facial challenge to the ordinance in the trial court, but raised such a challenge for the first time in his reply brief on appeal. Zubarau’s second cause of action for writ of mandate, however, specifically alleges, “Zoning Code § 95.03 B.3 is invalid because the field of Radio Frequency Interference is preempted by the Federal Government.” Such an allegation is a facial challenge to the asserted regulation of radio frequency interference by City Zoning Ordinance section 95.03 B.3.
The City also argues that the purported regulation of radio frequency interference by City Zoning Ordinance section 95.03 B.3 is saved by the section’s language permitting such regulation “unless exempted by Federal regulation.” Because federal regulation of this area is exclusive and preemption of state and local laws is complete, there is no ordinance concerning radio frequency interference that the City may enact that is not preempted. However this provision is interpreted, because of federal preemption, the ordinance cannot be applied to deal with radio frequency interference at all, and a provision that does so is invalid.

IV. Vagueness Of Provision
Zubarau contends that the trial court erred in rejecting his third cause of action for a judgment declaring City Zoning Ordinance section 95.03 B.1 unenforceable because it is confusing, unintelligible, contradictory, and may be applied in an arbitrary way. Zubarau’s third cause of action and his claim on appeal are construed fairly to state a claim that the challenged section is void because it is unconstitutionally vague. City Zoning Ordinance section 95.03 (“Vertical Antenna” contains section 95.03 B which provides: “The installation of residential single-pole or tower, roof or ground mounted television or amateur radio antennae may be permitted in all agricultural and residential zones in accordance with the following: [¶] 1. Height. Maximum height of the antennae shall not exceed seventy-five (75) feet measured from the grade to the highest point of the antenna. Maximum height of the active element of the antenna array shall be thirty (30) feet or less except as otherwise regulated by FAA or FCC.” Section 10.05 B of the City Zoning Ordinance provides in part, “Any person violating any provision of the Zoning Ordinance, or any amendment thereto, is guilty of a misdemeanor. Each violation is a separate offense for each and every day during any portion of time during which the violation is committed and is subject to the penalties specified in Chapter 1.12 of the Palmdale Municipal Code.”
Zubarau considers City Zoning Ordinance section 95.03 B.1 to be defectively vague because it permits 75 foot vertical antennae, but limits the “active element” of antenna arrays to a height of 30 feet without defining the term “active element of the antenna array” or reconciling the differing 75 foot and 30 foot height limitations. We agree that the section is impermissibly vague.

A. Standard of Review
On appeal, construction of a local ordinance is a question of law for the courts. (Rodriguez v. Solis, supra, 1 Cal.App.4th at p. 502.) The determination of a statute’s constitutionality is a question of law that we review de novo. (People v. Health Laboratories of North America, Inc. (2001) 87 Cal.App.4th 442, 445.) We apply the rules of statutory construction applicable to statutes to local ordinances. (Rodriguez v. Solis, supra, 1 Cal.App.4th at p. 502.) “All presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their constitutionality clearly, positively and unmistakably appears.” (Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, 484.)

B. Applicable Principles
A plaintiff may test the validity of a zoning ordinance in a declaratory relief action. (Viso v. State of California (1979) 92 Cal.App.3d 15, 22; see C. Dudley De Velbiss Co. v. Kraintz (1951) 101 Cal.App.2d 612, 615-616 [action for a declaratory judgment that county building ordinances were void for vagueness].) “Civil as well as criminal statutes must be sufficiently clear as to give a fair warning of the conduct prohibited, and they must provide a standard or guide against which conduct can be uniformly judged by courts and administrative agencies.” (Morrison v. State Board of Education (1969) 1 Cal.3d 214, 231; 5 McQuillin, The Law of Municipal Corporations (3d ed. 2004) § 15:22, pp. 203-206 [“An ordinance must be clear, precise, definite, and certain in its terms, and an ordinance vague to the extent that its precise meaning cannot be ascertained is invalid, although otherwise it is constitutional and valid,” footnotes omitted]; 4 Ziegler, Rathkopf’s The Law of Zoning and Planning (4th ed. 2010) § 65:36, pp. 65-90 to 65-91 [“Where the terms of a zoning ordinance are so vague as to not give sufficient notice of what precisely is permitted or prohibited, this vagueness is a violation of due process,” footnote omitted].) An ordinance that declares a violation thereof to be a misdemeanor or even an infraction “constitutes a penal statute which must satisfy the due process requirement that it not be vague.” (Personal Watercraft Coalition v. Marin County Board of Supervisors (2002) 100 Cal.App.4th 129, 140.)
“‘Reasonable certainty is all that is required. A statute will not be held void for uncertainty if any reasonable and practical construction can be given its language.’ [Citation.] It will be upheld if its terms may be made reasonably certain by reference to other definable sources [citation].” (American Civil Liberties Union v. Board of Education (1963) 59 Cal.2d 203, 218.)
Our Supreme Court has discussed the void for vagueness concept as follows: “‘a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.’ (Connally v. General Construction Co. (1926) 269 U.S. 385, 391 [46 S.Ct. 126, 127, 70 L.Ed. 322].) [¶] . . . [A] law that is ‘void for vagueness’ not only fails to provide adequate notice to those who must observe its strictures, but also ‘impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.’ (Grayned v. City of Rockford [(1972)] 408 U.S [104,] 108-109 [92 S. Ct. at pp. 2298-2299], fn. omitted.) [¶] . . . [A] claim that a law is unconstitutionally vague can succeed only where the litigant demonstrates, not that it affects a substantial number of others, but that the law is vague as to her or ‘impermissibly vague in all of its applications.’ (Hoffman Estates v. Flipside, Hoffman Estates (1982) 455 U.S. 489, 497-498 [102 S.Ct. 1186, 1193, 71 L.Ed.2d 362], italics added; see also Parker v. Levy (1974) 417 U.S. 733, 755-757 [94 S.Ct. 2547, 2561-2562, 41 L.Ed.2d 439]; Tribe, American Constitutional Law (2d ed. 1988) § 12-32, p. 1036.)” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115-1116.) “A facial challenge must fail if courts can conceive of a single situation in which the legislative enactment can be constitutionally applied. [Citations.] Success comes only if the challenge demonstrates that the law is uncertain ‘under any and all circumstances’ [citation].” (Personal Watercraft Coalition v. Marin County Bd. of Supervisors, supra, 100 Cal.App.4th at p. 138.)
The Supreme Court set “a pair of principles endorsed by the United States Supreme Court as reliable guides for applying the doctrine in particular cases. The first principle is derived from the concrete necessity that abstract legal commands must be applied in a specific context. . . . The second guiding principle is the notion of reasonable specificity.” (People ex rel. Gallo, supra, 14 Cal.4th at pp. 1116-1117.)
Notwithstanding that there are definitions of terms “active element” and “antenna array” (see fn. 3, ante), City Zoning Ordinance section 95.03 B.1 remains uncertain. The parties have not set forth any comprehensible definition of the terms as they are used in that section, nor have they provided any logical meaning of the provision. Section 95.03 B of the City Zoning Ordinance refers to the installation of a “single-pole or tower, roof or ground-mounted, television or amateur radio antennae” that may be permitted so long as the height of the antennae does not exceed 75 feet “measured from the grade to the highest point of the antenna.” Another restriction is that the “[m]aximum height of the active element of the antenna array shall be” 30 feet. The provision shifts inexplicably between singular and plural and does not define the terms in the context used.
The subject of the provision is a vertical “single-pole or tower.” The height limitation is measured from the grade—presumably from the ground. The City zoning ordinance does not specify from where the height of the “active element of the antenna” is to be measured, although the City states that it too must be measured from the ground. We are left to wonder about reconciling a height restriction of a vertical “single-pole or tower” antenna of 75 feet with a 30-foot height restriction for the active element of antenna array for a vertical “single-pole” or tower” antenna. Without some further definitions of the terms in context, the language does not meet the test of “reasonable specificity.” The City has not provided us with, nor can we discern, any circumstances under which the provision is sufficiently certain.
The City contends that the inconsistency in City Zoning Ordinance section 95.03 B.1 can be reconciled by interpreting the 75 foot height limitation to apply to vertical antennae and the 30 foot height limitation to apply to horizontal antennae array. Such a reconciliation is unreasonable because the 75 foot and 30 foot height limitations are part of a zoning ordinance that by its terms applies solely to vertical antennae and that does not, in any of its parts, refer to horizontal antennae. Section 95.03 is entitled “Vertical Antennae.” Section 95.03 A states that the “Purpose and intent” of the regulations in City Zoning Ordinance section 95.03 are to “provide standards for residential vertical television or amateur radio antennae that will ensure that such antennae are compatible with the surrounding neighborhood by preventing adverse visual, health, safety, and other impacts on the surrounding properties and/or the community.” (Italics added.) As stated in City Zoning Ordinance section 95.03’s “Review process,” set forth in section 95.03 C, “Vertical antennae shall be subject to administrative approval in accordance with Article 26.” (Italics added.) Accordingly, City Zoning Ordinance section 95.03 applies by its terms only to vertical antennae, and the 75 foot and 30 foot height limitations cannot be reconciled.
The City then suggested that unlike a single pole antenna operating independently, if there were vertical antennae “working together to create a single antenna with multiple components or . . . changing the radiation pattern from the pattern of each of the vertical antennae acting independently,” they would be treated as an array and limited to 30 feet in height. But the Ordinance covers single pole antennae. And the City offers no explanation of how the requirement of “the active element” fits into the 30-foot height restriction. It is also difficult to comprehend why multiple vertical antennae, when independent of each other, can be 75 feet but “vertical antennae” working together, should have a 30-foot height limitation.
There is no indication that the measurement “from the grade” is any different for the 75 foot requirement and the 30 foot requirement. The 30 foot requirement does not otherwise specify the points of measurement. The City does not even argue such a distinction. Indeed, the City asserts that “the use of the term ‘height’ in [the Ordinance] . . . consistently refers to distance measured from the ground to the highest point of the particular type of antenna.”
Section 93.03 B.1 of the City Zoning Ordinance is too uncertain to avoid being viewed as fatally vague. Accordingly, that provision is impermissibly vague, and the trial court erred in denying Zubarau’s request for a judgment declaring the provision unenforceable. It may well be that the City’s intentions, whatever they may be, can be promulgated in an understandable and consistent manner.

V. Attorney Fees Claim
Zubarau contends that the trial court erred when it denied his Code of Civil Procedure section 1021.5^[1] (section 1021.5)^[2] request for attorney fees as the successful party on his first cause of action. A trial court “may award attorney fees under section 1021.5 only if the statute’s requirements are satisfied. Thus, a court may award fees only to ‘a successful party’ and only if the action has ‘resulted in the enforcement of an important right affecting the public interest . . . .’ (Ibid.) Three additional conditions must also exist: ‘(a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.’” (Vasquez v. State of California (2008) 45 Cal.4th 243, 250-251.)
Because we reversed the trial court’s grant of Zubarau’s petition for writ of mandate as to his first cause of action, Zubarau is no longer a successful party who may be entitled to attorney fees under section 1021.5 with respect to that cause of action. Because we partially reversed the trial court’s denial of Zubarau’s second cause of action and entirely reversed the trial court’s denial of Zubarau’s third cause of action, however, Zubarau may assert that he is the successful party entitled to attorney fees under section 1021.5 as to those causes of action. Accordingly, we remand this matter to the trial court so that Zubarau may move for attorney fees with respect to his second and third causes of action. If Zubarau so moves, the trial court shall determine if Zubarau is entitled to attorney fees.


DISPOSITION
The trial court’s writ of mandate vacating the City of Palmdale’s order to remove Zubarau’s tower antenna (first cause of action) is reversed. The trial court’s denial of a writ of mandate invalidating City of Palmdale Zoning Ordinance section 95.03 B.3’s regulation of radio frequency interference (portion of section cause of action) and its denial of a declaration that City of Palmdale Zoning Ordinance section 95.03 B.1 is unenforceable as vague (third cause of action) are reversed. The trial court’s denial of Zubarau’s request for attorney fees in connection with his first cause of action is affirmed. The matter is remanded to the trial court to allow Zubarau to move for an award of attorney fees as to his second and third causes of action. The parties are to bear their own costs on appeal.

CERTIFIED FOR PUBLICATION




MOSK, J.


I concur:



ARMSTRONG, J.

I concur in all of my colleagues’ analysis except for the conclusion that Zoning Ordinance section 95.03 B.1 (section 95.03 B.1) is unconstitutionally vague. Section 95.03 B.1 states: “Maximum height of the antennae shall not exceed seventy-five (75) feet measured from the grade to the highest point of the antenna. Maximum height of the active element of the antenna array shall be thirty (30) feet or less except as otherwise regulated by FAA or FCC.” I agree with defendant, City of Palmdale, that the 30-foot height limit for the active element of the antenna specified in section 95.03 B.1 is not constitutionally uncertain.
There are several core principles that affect a determination a statute is unconstitutionally vague. First, section 95.03 B.1 is presumed to be constitutional and it must be upheld unless its unconstitutionality clearly appears. (Walker v. Superior Court (1988) 47 Cal.3d 112, 143; Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, 484.) Second, the challenged ordinance must be viewed in the specific context in which the issue arises and the challenged language is used. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1116-1117; Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1107.) Third, a statute must provide reasonable specificity or certainty. (People ex rel. Gallo v. Acuna, supra, 14 Cal.4th at p. 1117; Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1180.) Fourth, if any reasonable or practical construction can be given a statue, it cannot be invalidated on void for vagueness grounds. (American Civil Liberties Union v. Board of Education (1963) 59 Cal.2d 203, 218; accord, People ex rel. Gallo v. Acuna, supra, 14 Cal.4th at p. 1117.) In this regard, if a court can conceive of a single situation in which a statute can be applied, it may not be invalidated on its face. (Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 60-61; Personal Watercraft Coalition v. Marin County Bd. of Supervisors (2002) 100 Cal.App.4th 129, 138.)
There are two sentences in section 95.03 B.1. The first sentence sets a limit on the height of the antenna above the ground, “Maximum height of the antennae shall not exceed seventy-five (75) feet measured from the grade to the highest point of the antenna.” The second sentence, which relates only to the height of the active element, makes no reference to height above the grade, “Maximum height of the active element of the antenna array shall be thirty (30) feet or less except as otherwise regulated by FAA or FCC.” Thus, the context of the language used is that the above grade requirement appears only in the first sentence but not in the second relating to the maximum height of the active element. The second sentence relates only to the active element, which does not occupy the entire antenna. The second sentence makes no reference to an above grade requirement.
Further, a reasonable construction of the two sentences is that the first sentence sets a maximum height of the entire antenna above the grade. By contrast, the second sentence relates solely to maximum height of the active element. It is conceivable to construe section 95.03 B.1 to read that the 75-foot limit relates to the height of the entire antenna. And the second sentence can be construed to apply only to the height of the active element on the maximum
75-foot high antenna. In my respectful view, plaintiff, Alec Zubarau, has failed to sustain his burden of proving no reasonable or practical construction can be given to section 95.03 B.1.
A final word is in order concerning defendant’s response to our request for further briefing on the alleged ambiguity in section 95.03 B.1. We asked the parties to brief the following issue: “Can City of Palmdale Zoning Ordinance section 95.03 B.1 reasonably be interpreted to mean that a vertical antenna shall not exceed 75 feet in height from the grade—meaning the ground—and that if there is an array on such a75 foot antenna, the active element of the array shall not exceed 30 feet in height measured from its bottom to its top‌ For example, can the section be interpreted to allow an antenna that is 75 feet in height with the highest 30 feet of the antenna consisting of the active element of an array‌” Defendant’s response to our inquiry was: “Yes, the Court’s query presents a reasonable interpretation of Section 95.03B.1 of the City of Palmdale’s (the City’s) Zoning Ordinance which provides that, for installation of residential single-pole or tower, roof or ground mounted, television or amateur radio antennas in a residential or agricultural zone, the maximum height of the antenna shall not exceed seventy-five (75) feet from the grade to the highest point of the antenna and the maximum height of the active element of the antenna array shall be thirty (30) feet or less except as otherwise regulated by the FAA or FCC.” So there is no question, defendant explicitly agreed that the discussion appearing in the first four paragraphs of this opinion is a correct analysis.
Defendant then proceeds in its written response to our letter with an odd analysis which is set out in its entirety in the margin.^[3] With respect to defendant, the additional discussion is irrelevant to the legal issue before the court; viz. whether any reasonable or practical construction can be given to section 95.03 B.1. The following references in the matter cited in the margin are unrelated to this controlling legal issue. It is immaterial that plants are allegedly measured in terms of their height by how far they grow out of the ground. Further, the cited language in Federal Communications Commission documents has nothing to do with measuring an active element attached to an antenna which does have a height limitation from the ground. More critically, the Federal Communications Commission documents have no preemptive effect in terms of a municipal regulation of the height of an active element. (Wyeth v. Levine (2009) 555 U.S. __, __ [129 S.Ct. 1187, 1193-1195; Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1095-1099.)


TURNER, P. J.




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