CA Appeals Court Holds City Must Reasonably Accommodate HAM Radio Operator but Found Parts of the Ordinance Preempted

Zubarau, an amateur radio operator, brought an action against the City after it ordered him to remove a tower antenna in his backyard and another on his roof.  Zubarau argued that the ordinance is preempted by federal law and is unconstitutionally vague.  The California Court of Appeal, Second District held that Zubarau has standing, his claim is ripe, and that the City’s removal order is supported by substantial evidence and is in compliance with state and federal law. Additionally, the court found that the portion of the City’s ordinance regulating radio frequency interference is preempted by federal law, and the ordinance’s height requirements are unenforceable as they are unconstitutionally vague.                     

Zubarau obtained permits from the City to construct a fifty-five foot backyard tower antenna and a forty foot roof mounted antenna. However, he installed a“horizontal array antenna on the tower antenna” without a permit. As a result, complaints were lodged concerning the addition of antennas and interference with various electronic devices. The City inspected the antenna, and noticed with the addition of the horizontal array, it could reach over sixty-one feet when extended; and later inspections revealed he extended the array above the permissible height. After a long hearings process and much community involvement, the City Planning Commission adopted a resolution revoking the permits finding the plaintiff’s antennae were inconsistent with the purpose and intent of the vertical antenna ordinance. Additionally, the City pointed to safety and aesthetic concerns regarding the height of the antennae, as well as other code violations. 

Zubarau fought the resulting resolution and permit revocations by appealing the Commission resolution to the City Council, which granted his appeal concerning only the revocation of the permit for the roof antenna.  The plaintiff proceeded to court seeking a writ of mandate directing the City Council to grant his appeal regarding the tower antenna permit revocation, another writ of mandate to strike maximum height requirements and radio frequency regulation in the zoning ordinance, and a declaration that the radio frequency sections of the zoning ordinance are unconstitutionally vague.  The trial court granted the writ of mandate as to the original tower antenna, finding there was an abuse of discretion and that the determination was not supported by substantial evidence. The trial court denied the other causes of action. 

The Court found that Zubarau had standing to challenge in the second and third causes of action (challenges to the ordinance on preemption and constitutional grounds) because he participated in a hobby that is regulated by the challenged ordinance. Further, the Court found the claim was ripe given the plaintiff’s hobby, permit requests, and the City determinations he is subject to. The Court then addressed the issue of the tower antenna and whether the trial court properly issued the writ of mandate. The court stated that concerning amateur antennae, state and federal law require the locality to craft their regulations to accommodate amateur communications, using minimal regulations to succeed in the locality’s legitimate purposes. Applying the relevant law to the case, the court found that the City Council’s decision to deny the appeal was supported by substantial evidence, as the tower posed safety hazards, encroached on setback and height requirements, interfered with electronic devices, and was not aesthetically pleasing. The court found this was consistent with federal and state law, as what is required is accommodation, not allowing the radio operator to do as he pleases.  In this case, Zubarau was accommodated as the City Council granted his appeal to use the roof mounted antenna. Thus the court reversed the trial court’s ruling regarding the tower antenna. 

The court then addressed the issue of whether the zoning ordinance section regulating radio frequency was preempted by state and federal law. The court determined that these sections were preempted, as the FCC was given exclusive jurisdiction over radio frequency interference. Given that the City ordinance stated an antenna may not be used if it causes interference, the court determined the regulation was within the ambit of the FCC’s complete and exclusive jurisdiction and was thus preempted. 

The court then moved its attention to Zubarau’s last antenna-based claim, that the “Vertical Antenna” section of the zoning ordinance is void for vagueness. This section states that an antenna can be seventy-five feet tall and the active element of the antenna array can be thirty feet tall. The court found that this section was unconstitutionally vague as it does not meet the test of reasonable specificity as there is no logical way to reconcile the two different height requirements. 

Zubarau v. City of Palmdale, 121 Cal. Rptr. 3d 172 (Cal. Ct. App., 2nd Dist, 1/27/2011) 

The opinion can be accessed at:  http://www.courtinfo.ca.gov/opinions/documents/B216308.PDF