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California Supreme Court Declines to Hear Antenna Zoning Case

04/21/2011

The California Supreme Court refused to hear the antenna zoning case brought forth by Alex Zubarau, WB6X, of Palmdale, California -- with the assistance of his ARRL Volunteer Counsel Len Shaffer, WA6QHD -- after receiving a mixed decision by the California Court of Appeals earlier this year. The Supreme Court -- California’s highest court -- handed down their decision on April 20.

In 2005, Zubarau applied for a building permit to erect an antenna support structure on his property. The City of Palmdale approved his request, and building permit in hand, Zubarau installed a 22 foot tall crank-up tower (with an ultimate height of 55 feet), but did not place an antenna atop the structure. He also installed a 23 foot tall mast on his house, for a total mast height of 43 feet; he installed an inverted-V on the mast. In January 2007, he placed a 4 element 20 meter SteppIR antenna on the crank-up tower, and the neighbors started complaining to the City.

ARRL Southwestern Division Vice Director Marty Woll, N6VI, said that the neighbors’ assertions consisted of what he called “the typical complaints: aesthetic impact, diminution of property values and RF interference.” The RFI complaints were general in nature; no direct evidence was shown of actual RFI, but the City’s Planning Commission staff took the position that “based on anecdotal evidence presented by the homeowners, the transmissions occurring from the antenna are causing interference with electrical equipment in the surrounding neighborhood.”

Woll said that after Zubarau installed the SteppIR in 2007, the City of Palmdale -- acting on a petition signed by almost 70 of Zubarau’s neighbors -- voted to revoke Zubarau’s original building permit after he had relied on it in putting up his tower. “In order to gain a continuance, Zubarau told the Planning Commission he would remove the SteppIR, in essence, reverting his antenna configuration back to the way to it was before he installed the antenna” Shaffer -- who put in hundreds of hours of time on this case at no cost to Zubarau -- said. “At the next hearing, he was ordered to remove not only the antenna, but the support structure, as well.”

After Zubarau exhausted his administrative remedies, he challenged the action in the courts, aided by Shaffer. A court date was set for February 2009. On February 6, 2009, Los Angeles Superior Court Judge David Yaffe issued a ruling in favor of Zubarau. According to Shaffer, the Superior Court’s ruling invalidates the actions of the City in revoking Zubarau’s permit and requires the City to allow him to replace the tower.

In January 2011, the California Court of Appeals, Second Appellate District, issued its Opinion in Zubarau’s case. The Court found that the Palmdale antenna ordinance, as it pertained to the height limit for vertical antennas, was “unenforceable” because it allowed a radio amateur to have a vertical antenna up to 75 feet high when measured from the ground but limited the “active element of the antenna array” to 30 feet. The ordinance did not define “array” or “active element” and did not specify from where the 30 permitted feet for such “array” was to be measured. The Court found that if even one reasonable interpretation of the ordinance could be found, the ordinance could be upheld, but that in this case, no one could understand what the limitations were and how they could be applied. That portion of the City’s ordinance was therefore unconstitutional and unenforceable.

The Court also held that the ordinance was unenforceable to the extent that it attempted to regulate radio frequency interference. The City maintained that it could regulate RFI, but the Court, citing case law and argument in ARRL Amicus Curiae brief, held that only the FCC could regulate RFI. Any State or municipal law that attempts to regulate RFI is preempted.

But the Court held that Palmdale properly ordered Zubarau to remove his permitted 55-foot crankup tower. The Court opined that the small, VHF/UHF vertical on the roof constituted “reasonable accommodation” under PRB-1 and California PRB-1 statute (California Government Code Section 65850.3). The Court said that leaving Zubarau with a VHF/UHF antenna constituted a reasonable accommodation because it allowed him to be active in some part of Amateur Radio. There was no analysis of the “minimum practicable regulation” test in PRB-1 and the California statute, so that part of the three-prong PRB-1 test was left unexamined. The Court of Appeals said they thought this was a reasonable accommodation because it allowed Zubarau to be active in some part of Amateur Radio. At the time, Shaffer called this decision “troubling.” It was this matter that Zubarau and Shaffer hoped the California Supreme Court would review.



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